The Supreme Court has already heard the Hijab case : Here’s how

‘Men, their rights and nothing more; women, their rights and nothing less.

Susan B. Anthony

While making submissions before Karnatka high court, the Advicate General Prabhuling Navadgi for the state, submitted a very unique point of view, the point of view of Justice DY Chandrachud of the supreme court of india.

It’s been a week since the hearing in the so called ‘Hijab Row’ started before the Karnatka high court. Justice Krishna S Dixit, Chief justice Ritu Raj Awasthi, and Justice J M Khazi are listening to the arguments of petitioners (a bunch of girls who want to wear Hijab to the classrooms in a pre University college in Karnataka and in some other schools), and Advocate Devdutt Kamat, for the petitioners, submitted that the right to freedom of religion under article 25 (1) and the right to freedom of expression under article 19(1) guarantee the right to wear hijab, in line with Turban that Sikh men wear.

What Are Essential Religious Practices ?

He made other arguments as to Hecklers Veto and why Hijab is essential to Islam and on essential religious practices And the karnatka High court asked if Hijab is an essential religious practice. False equivalences were also drawn to Mangalsutra of Hinduism and Hindus.

But here’s what AG Navadgi submitted that is of utmost importance:
”Assuming the court accepts all arguments of the petitioners and assuming that every proposition is correct, then in the light of the law laid down by the Supreme Court in the Sabarimala Case, would it be possible today to accept the principle of hijab on the point of Constitutional morality and individual dignity?”

AG asked. “Ultimately, if you see the claim of the petitioners, it is to wear a particular attire & if they are coming for a declaration that we want every woman of a particular faith to wear that, then would it not violate the dignity of the person whom we are subjugating?. It hits at the personal liberty of an individual and the choice to wear what they want.”

Well I tell you why this submission is of great importance :

In Sabarimala Verdict chief justice of India Deepak Mishra and Justice A. M. Khanwilkar said the followings:

“It is a universal truth that faith and religion do not countenance discrimination but religious practices are sometimes seen as perpetuating patriarchy thereby negating the basic tenets of faith and of gender equality and rights. The societal attitudes too centre and revolve around the patriarchal mindset thereby derogating the status of women in the social and religious milieu.”

further readings: The Kashmir Files : Could this be the true tale of Kashmir valley exodus or usual gaslighting of Kashmiri pandits

What Justice D Y Chandrachud said

”Our conversations with the Constitution must be restructured to evolve both with the broadening of the content of liberty and dignity and the role of the Court as an enforcer of constitutional doctrine. The basic principle which must guide any analysis in this area is the dominance of the values of liberty, equality and fraternity as instruments in achieving individual dignity.

Once individual dignity assumes the character of a shining star in the constellation of fundamental rights, the place of religion in public places must be conditioned by India’s unwavering commitment to a constitutional order based on human dignity. Practices which are destructive of liberty and those which make some citizens less equal than others can simply not be countenanced. To treat women as children of a lesser god is to blink at the Constitution itself. Among the fundamental duties of every citizen recognized by the Constitution is “to renounce practices derogatory to the dignity of women”.

In speaking to the equality between individuals in matters of livelihood, health and remuneration for work, the Directive Principles speak to the conscience of the Constitution. To allow practices derogatory to the dignity of a woman in matters of faith and worship would permit a conscious breach of the fundamental duties of every citizen. We cannot adopt an interpretation of the Constitution which has such an effect.

Our inability to state this as a matter of constitutional doctrine is liable to lead us to positions of pretence or, worse still, hypocrisy. Both are willing allies to push critical issues under the carpet. If we are truly to emerge out of the grim shadows of a society which has subjugated groups of our citizens under the weight of discrimination for centuries, it is time that the Constitution is allowed to speak as it can only do: in a forthright manner as a compact of
governance, for today and the future.

Justice DY Chandrachud, SC, India

At a time when we, as a society are moving away from regressive anti-woman practices and trying to make a society accommodating of women’s rights, it can’t not be that, ”man has put the autograph and there is no space for a woman even to put her signature”.

While many countries in the world have banned public outing with hijab and burqa, even most islamic countries, is it progressive to sign a judicial declaration allowing hijab in classrooms, which is supposed to be a place of learning?

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