New Delhi, Sep 15 Senior advocate Colin Gonsalves on Thursday told the Supreme Court that the Karnataka High Court's judgment upholding ban on hijab in pre-university colleges, is basically from the perception of the majority community, and some observations made in the judgment are hurtful and deeply offensive to those who follow Islam.
Gonsalves, representing one of the petitioners in the matter, submitted before a bench of Justices Hemant Gupta and Sudhanshu Dhulia that the HC judgment was basically from the perception of the majority community where the minority view is seen very partially.
"It is a majoritarian judgment. It does not have constitutional independence... There are startling paragraphs, hurting paragraphs in the judgment," he said. The bench said it has seen his written submissions.
Citing the HC judgment, Gonsalves submitted that it said one cannot have scientific temper if she wears hijab, and this is a hurtful statement. Referring to another observation in the HC judgment, he said that insistence on wearing hijab is against emancipation of women, and this is also a hurtful statement.
"Parts of the judgment are deeply offensive to those who follow Islam...".
He also drew a comparison between the kirpan and turban with the hijab, noting that the former had already been protected by the Constitution. "If a turban is allowed in school, why not the hijab? What's the difference? Apart from the fact that it got constitutional protection 75 years ago," he said.
Senior advocate Kapil Sibal, representing one of the petitioners, submitted that there can be no quarrel with the proposition that a citizen is entitled to give expression of her personality by not just wearing a dress of her choice but, in the context of her cultural traditions.
"Wearing such dress which allows others to identify that she belongs to a particular community, embraces a particular culture, and represents the values of that culture," he said.
"This fundamental right to express herself and the culture she hails from must be protected under Article 19(1)(a) and would be in aid of the Preambular objective of liberty of thought, expression, belief, faith and worship."
He argued that there can be no law which prohibits such expression as long as it does not disturb the public order, or, violate the accepted norms of decency and morality as prescribed by law.
Sibal told the apex court that 145 students out of 900 in colleges at Mangaluru, Udupi, and Dakshina Kannada have collected their transfer certificates after the hijab ban, which is "very disturbing".
He cited a response received under RTI, showing 16 per cent dropout of students in pre-university colleges due to the hijab ban after February 6 notification by the Karnataka government.
He said the matter should be referred to the constitution bench, since the HC judgment raised questions which have not been decided before by this court.
"The kind of dress worn by a citizen also gives expression to the autonomy of the mind by which she also protects the autonomy of her body," he said.
Advocate Prashant Bhushan, representing one of the petitioners, submitted that it was not necessary to raise essential religious practice argument and the petitioners only need to show it is a bona fide practice, and public educational institutions cannot impose a dress code.
The top court will continue to hear arguments next week on the petitions challenging the Karnataka High Court's judgement of March 15 upholding ban on hijab in pre-university colleges.
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