Hijab Row: Matter Referred To A Larger Bench

KEY TAKEAWAYS

• The High Court, without granting any interim relief, has referred the matter to a larger Bench
• Justice Krishna S Dixit, the judge hearing the matter, noted that the instant matter gave rise to constitutional questions which are of great importance qua personal law and must be decided by a larger Bench
• Considering the urgency of the matter, Hon’ble Justice directed the records to be immediately placed before the Chief Justice
• Amidst all the uproar surrounding the case. a plea seeking transfer of the Petition to the Supreme Court was declined by the Court stating that it sees no reason to interfere in the matter

LATEST UPDATE

In the previous article, the controversy, legal precedents and the latest state of the proceedings were discussed. In this article,let us understand the courtroom exchange, arguments presented by both the sides and the observations made by the single judge Bench of the Hon’ble High Court (HC).

While hearing the arguments from both sides, the Hon’ble Court urged to keep passion and emotions aside and address the matter by laws, reason and the Constitution and requested the public to maintain peace and tranquillity in public and to restrain protests and demonstrations.

Further, the Court considered the matter fit to be heard by a larger bench given that the present petition posed questions of seminal importance before the Court which needed to be heard by a larger Bench.

QUESTION BEFORE THE COURT

In the instant Writ Petition, the question arising before the Court is:

a. Whether wearing of hijab is an essential religious practice?
b. Whether the State’s interference in the matter warranted?
c. Whether wearing the Hijab partakes the character of right to speech and expression under Article 19(1)(a) of the Constitution?
d. Whether any restriction can be levied only under Article 19(2)?

ARGUMENTS ADVANCED BY THE PETITIONER

The following were the key contentions made by the Counsel for the Petitioners before the single-judge Bench of the HC:

• The impugned order by the State violates the provisions of Article 21 of the Constitution and also the observation made by the Court in the case of Justice K.S.Puttuswamy v UOI & Ors .
• In their arguments, the Counsel relied upon the various judgments, including a judgment by the Kerala High Court which held that the wearing hijab is an essential religious practice in the Islamic faith. In this regard, attention was drawn to verse 24.31 and 24.33 of the Holy Quran, which talks about hijab being an essential religious practice.
• It was argued that the right to wear clothes of one’s choice is facet of the fundamental right to speech and expression under Article 19(1)(a) and the threshold of ‘public order’ is very high for the purpose of restricting this right.
• The jurisdiction of the State to issue an order on the dress code under the State education rules was also challenged. The Counsel also stated that keeping aside the question whether wearing hijab is an essential religious practice, another question regarding State’s power to issue order on uniforms is also to be considered and this a purely an administrative issue.
• The Petitioner further prayed before the Court that until a larger Bench was constituted, an interim arrangement must be made so that the students aren’t left out of college.

ARGUMENTS ADVANCED BY STATE AND COLLEGE DEVELOPMENT COMMITTEE

• Advocate General, PK Navadgi appearing for the State (AG), stated that the present petition is not maintainable as it is misconceived as each institution has the autonomy to prescribe uniforms.
• Opposing the grant of an interim relief, the AG contented that granting an interim relief will be as good as allowing the petition.
• The AG claimed that the hijab did not form an essential religious practice by placing reliance on a Kerala High Court judgment .
• It was also claimed that the State does not aim to interfere with the religious beliefs of the people of any religion but is only concerned to ,maintain uniformity, discipline and public order within en educational institute.
• The Counsel appearing for the College Development Committee (CDC) stated that interim relief was not necessary in the instant case since the prescription for uniform has been in place for a year now.