Women In Iran Are Fighting Against Hijab- Tushar Mehta Argues For State Of Karnataka

Solicitor General Tushar Mehta, responding for the state of Karnataka in Hijab Appeals, referred to the protests happening in Iran against compulsion by the government to wear Hijab.  

Iran is witnessing massive protests, where women are burning their Hijabs in public and cropping their hair in protest over the death of a young woman who was arrested by the "morality police," who enforce a strict dress code, including Hijab. 22-year-old Mahsa Amini died in hospital after being in a coma for three days. She was reportedly arrested and beaten by the morality police since her hair was visible despite wearing a Hijab.

The Respondents in the Hijab Appeals commenced their arguments today after marathon arguments by the Petitioners through numerous Senior Advocates.

Solicitor General Tushar Mehta informed the Court that he, Advocate General of the Karnataka, Prabhuling Navadgi, and Additional Solicitor General K. M. Nataraj will argue for the state.     

Tushar Mehta commenced by stating that till 2021 no girl student was wearing Hijab and that the impugned notification not only prohibits Hijab, but also saffron shawls worn in protest by Hindu students. He submitted that the uniform prescribed was being scrupulously followed until a campaign was started on social media by the Popular Front of India (PFI), which was designed to create an agitation. 

He submitted that there were social media messages asking students to start wearing Hijab and that the details of that have been placed on record. He submitted that it was not a spontaneous act and was part of a larger conspiracy. He referred to the observations in the Judgment of the High Court about how the issue cropped up and told the Court that pursuant to the observation of the High Court about the need to investigate how the agitation began, a charge sheet has been filed after the investigation.  He also told the Court that the assertion in the pleading of the Appellants that they were wearing Hijab earlier is not substantiated. 

He argued that it was a secular decision of the government and that the argument that government acted against minorities is far-fetched.

Upon his submission that the state had to intervene due to disturbance to 'public order', Justice Dhulia asked him to clarify. Mehta replied by stating that there were students at the school gate demanding to enter wearing Hijab and saffron shawl.   

When Justice Gupta pointed out that the power under the statute is only to issue directions to the institutions and not students, Tushar Mehta said that directions have only been issued to the institution and not students and that an institution is not merely the buildings, but also its students. 

In reply to a question by Justice Dhulia as to whether in the absence of uniform, would the state have objected to the wearing of Hijab, Tushar Mehta submitted that as per the order, the students are required to wear a dress which goes with the idea of equality and unity in the absence of a prescribed uniform.

Mehta submitted that parameters for determining what is Essential Religious Practices for the purpose of Article 25 are settled. It should be from time immemorial, it should be co-founded with the religion itself, everything that is part of religion will not be essential, he said. He submitted that there is no averment in pleadings that any of the ingredients for constituting ERP are met. He said that in our country the state has no religion but even in countries where the religion was born do not follow this practice as essential. 

"I will say very candidly, as an officer of Court, the Court could have avoided going into that question", Mehta said in reply to the question by Justice Dhulia as to who will answer the question of essential religious practice, adding also that the High Court had no choice of not going into it since the petitioners raised half-hearted pleadings about it. 

Mehta said that mere mention of something in the Quran will not make it an essential religious practice. 

He said that in Islamic countries, women are fighting against Hijab. He referred to what is happening in Iran and said that mention of the practice in the Quran may make it permissible or ideal, not necessarily essential.

On the argument based on Article 19 of the Constitution, the Solicitor General said that he had written an article in 2020 about lawyers appearing in casual dress in virtual hearings during the pandemic and that the article refers to the judgments of the US Supreme Court on the subject. 

On a question by Justice Dhulia as to whether spectacles can be worn in addition to the uniform, the SG submitted that spectacles do not reveal any religious identity. The Judge then referred to wearing a muffler or a cap, which could be due to weather conditions. The Advocate General then said that a muffler of the same colour as the uniform is permitted and provided for. Justice Dhulia then asked, then why not permit a Hijab of the same colour?  "Cap does not disclose religion, if it does not depeict religion, if it does not affect equality and unity, it can be worn, but skull cap cannot be worn", Mehta said.  

He summarised his arguments by saying that the state has the power to issue the impugned order and that there is reasonable justification for the exercise of that power. It was a non-arbitrary exercise of power making it religion-neutral. "They went before the Court claiming that it is an essential religious practice, but could not establish it as per established criteria", Mehta said.  

While discussing essential practices, Justice Gupta said, "We got an email from somebody that under Muslim law women cannot go out unattended, they have to go with somebody. Is that a requirement that they are asking for?"

Mehta then gave an example of a lady in a country where women can't drive, who is an international pilot, who is driven from her house to the airport by her husband. 

Mehta said, "Court went into the interpretation of quranic verses, it could have been avoided". Justice Dhulia then said that the High Court not only did that but relied upon some commentary while rejecting others. Mehta responded by saying that it is precisely the problem since there can be many interpretations. He said that the issue is one of uniformity and equality. 

Tushar Mehta said, "if I want to wear a Shikha, and the School says no to it, I will have to go to a Vedic Pathshala and not the school.  Can I wear a band on my head saying that I oppose Russian aggression against Ukraine and come to Court? I can do that at a crossroads, outside the Court, but I can't come to Court with that".

After Tushar Metha concluded, Advocate General of Karnataka, Prabhuling Navadgi commenced his arguments and will continue his arguments tomorrow.