[Hijab Case Day 5] Indirect discrimination to Muslim community: Appellants argue before Supreme Court

The Supreme Court on Wednesday heard at length arguments by three senior counsel opposing the March 15 Karnataka High Court verdict that effectively upheld the ban on wearing hijab in government schools and colleges [Fathima Bushra vs State of Karnataka]..A bench of Justices Hemant Gupta and Sudhanshu Dhulia heard arguments ranging from indirect discrimination, the idea of fraternity to the targeting of the Muslim community. The court will continue hearing counsel opposing the High Court's verdict tomorrow..Arguments by Senior Advocate Huzefa Ahmadi.- Right from the Preamble, the Constitution speaks of fraternity, which means accepting all faiths. To standardise everything is the anti-thesis of fraternity."The GO misunderstands the concept of fraternity and confuses it as an anti-thesis of diversity. 'Transcending your group identity' is not fraternity at all", the senior counsel said.It was further emphasised that in the Preamble, liberty and equality were qualified, but fraternity was not."Uniformity" in the order was also argued to have been confused with fraternity and unity."The GO, by disallowing the Hijab creates an arbitrary barrier for education and fraternity. The GO infringes upon the preambulary promise of fraternity.".- Legitimate state interest lies in encouraging education, particularly in the case of minors. Restrictive practices will result in increased drop-outs. Therefore, the government order was opposed both to legitimate state interest and public interest. Ahmadi said that legitimate state interest was to encourage diversity, not standardise everything. Further, he submitted that the order created an arbitrary barrier to education."As a welfare state, isn't education your priority? Where does public interest lie?", he asked..- The Karnataka Education Act encourages unity and diversity, and emphasises on the accommodation of religious belief..- The consequence of the government order will be increased drop-outs.The senior counsel brought to the court's attention that the class of students who were earlier restricted to learning in madrasas, had broken stereotypes and were now going to school to receive a secular education. However, this order was stated to be a "death knell" for the girls' secular education. .- If the order targets a particular community, even if it appears neutral, it will run foul of Article 14 of the Constitution."Why should anyone get provoked if someone wears a Hijab to school? Why should any other student have a problem? If it does, you have to address that. Otherwise you're allowing someone to be bullied. We hardly want that.".Arguments by Senior Advocate Rajeev Dhavan.- The right to dress is part of free speech, and it is only subject to public order. .- A person wearing the Hijab cannot be discriminated against on the grounds of both religion and sex."It is not simply a case of discipline", he said while stressing that the case needed to be put in its proper perspective. "We know that today there is a lot of discontentment in the majority community to knock down whatever comes as Islam.. It is simply poking at one aspect of a religion, saying let's see if we can get this one aspect struck off", the senior advocate added. .- If something is done according to tenets of a faith, without bad faith or mala fide the court simply needs to consider whether the practice is prevalent."Therefore, if it is showed that Hijab is prevalent in Karnataka, no secular authority can say it's not."The only caveat was that the practice should not go against the holy book, he clarified. .- The test is one of proportionality is to take the least invasive approach.Senior counsel Dhavan said that there was no reasonable justification to say that the headscarf could not be included in uniforms, and it was targeting Muslims, and Muslim women in particular."Take for example, one of the suggestions by the pupils was that we'll wear a headscarf in the same colour as the uniform", he highlighted. .Arguments by Senior Advocate Aditya Sondhi.- An element of indirect discrimination emanates from the government order..- The socio-economic criteria and background of the students needed to be considered in light of intra-faith differences."I had Muslim classmates in law school who did not wear the Hijab. It is a choice", the senior counsel explained..- A very heavy burden to choose between their faith and education has been cast on the students. "The students are compelled to choose, and they are forced out of education."He further explained the concept of the 'Hobson's choice', which refers to illusion that multiple choices are available while there is no real alternative. .The Karnataka High Court had on March 15 upheld a Karnataka government order (GO) effectively empowering college development committees of government colleges in the State to ban the wearing of hijab (headscarves) by Muslim girl students in college campus.The petitioners - Muslim girl students from various colleges in Karnataka - had approached the High Court after they were denied permission to attend classes on account of wearing hijab..Read more about Day 1 here.Read more about Day 2 here.Read more about Day 3 here.Read more about Day 4 here..[Read our live coverage of the hearing]