NEW DELHI: Relying on the contents of a report by the Public Union of Civil Liberties which dealt with the impact of Karnataka HC’s verdict, Senior Advocate Huzefa Ahmadi for the Muslim students in the Karnataka hijab ban case on Wednesday told the bench of Justices Hemant Gupta and Sudhanshu Dhulia the ban had resulted in thousands of students abstaining from taking the exam.
Questioning the authenticity of the report, the bench said, “We don't want to say anything about reports. We didn’t accept. The issue of the dropout rate was never raised before the HC. You are arguing for the first time here.”
Ahmadi also argued that Muslim girls who were confined to madrassas earlier had broken stereotypes by joining secular education with a hijab but the GO which restrained students to wear the hijab, or customary Islamic headscarf to educational institutions took that away from them.
Taking exceptions to his submissions, the bench said, “There is no foundation of that in the writ petition read by Mr Mucchala that you are going to Madrassas, that it’s not the case set up. HC has not discussed it.”
The GO said it was to develop fraternity, but it is the antithesis of fraternity, Senior Ahmadi also argued. Stressing on the objective of the Karnataka Education Act which promotes unity in diversity, he said that the circular was the objective of the act.
“If somebody is getting proved by hijab, he should have a sense of brotherhood and fraternity,” Ahmadi added.
Senior advocate Rajeev Dhavan for a 17-year-old girl GO targeted Muslim women without any sensitivity, was contrary to law and the Constitution.
“This is not a yes no issue. This is not an issue where you say we have a disciplinary code and you follow it. What are the obligations of the authority concerned to bring about a measure of inclusiveness and to apply the least restrictive approach. The GO is against hijab, it targets Muslims and Muslim women particularly. Violates article 14 & 15 and this Targeting without any sensitivity is contrary to law and the constitution,” Dhavan submitted.
Pointing out the HC’s judgment of Abdullah Yusuf Ali, Dhavan said, we don’t want your lordships to be mailvies or pandits. The conclusion of HC is puzzling as it says that hijab is not mandatory due to absence of prescription of penalties which goes to the fundamentals, Dhavan said. He also said that if a believer holds the practice to be essential in good faith, it is considered to be essential to religion.
Stressing on the argument that courts were not equipped to interpret the Quran due to it not being sufficiently proficient in Arabic, Justice Gupta asked Dhavan, “You say that courts are not equipped but if there is an issue who will decide. If a dispute arises about a particular practice?”
“In this impugned judgment conclusion that has been reached is that it is a directory. What is the dispute, whether it is an essential practice. If all over India, hijab is practiced, lordships will only see if it is a bona fide practice,” Dhavan responded.
Laying emphasis on the fact that ban of hijab was Karnataka specific and wasn’t a standard practice to hijab, Dhavan said that across the Muslim world and non-Muslim world hijab was permitted.
“This is simply poking at one aspect of religion and then saying let’s see if we can get this aspect struck by courts,” he said.
Senior Advocate Aditya Sondhi told the court that the ban indirectly discriminated against Muslim women. “Depriving access to education to Muslim women based on their choice to wear hijab would an exclusionary education practice, Sondhi also said.