‘How would wearing Hijab threaten unity and integrity of the country?’ Dushyant Dave asks SC

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Dushyant Dave

By Muslim Mirror Desk

Senior advocate Dushyant Dave, representing some petitioners challenging the Karnataka High Court judgment on hijab, on Monday told the Supreme Court that there is a pattern to marginalize a community.

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Citing the Pulwama terrorist attack that killed 48 CRPF soldiers on February 14, 2019, senior advocate Dushyant Dave, representing some petitioners challenging the Karnataka High Court judgment on hijab, on Monday told the Supreme Court that there is a pattern to marginalize a community. He said that only one suicide bombing took place in India, which shows that minorities have placed their faith in the country.

Continueing hearing the petitions challenging the Karnataka High Court’s judgment which upheld the ban on wearing hijab by Muslim students in educational institutions, Senior Advocate Dushyant Dave appearing for the Petitioners made elaborate submissions on religious and cultural diversity of India, Constituent assembly debates and protection of religious rights under Article 25 of the Constitution.

He contended that hijab is important for Muslim women and it is their faith and added that somebody wants to wear the tilak, somebody wants to wear the cross, everybody has the right and that is the beauty of social life.

“How would wearing hijab threaten the unity and integrity of the country?” he said.

At this, the bench replied that even the Karnataka High Court judgment does not say that and nobody is saying that.

He submitted that Muslim girls wearing Hijab cannot be said to have hurt anybody’s sentiments. “Our identity is hijab,” Dave remarked.

He added that first, the whole dispute over ‘love jihad’ and now, the prevention of Muslim girls from wearing hijab to educational institutions, reflects a pattern to “marginalise” the minority community.

He urged the Bench that with the expansion of scope of Article 19 and 21, the Constitution has to interpreted liberally. “Religious right is individualistic; it is the choice of an individual…”

Tracing the origin of harmonious co-existence of various religions in India to 5,000 years ago, Dave said, “This country is built upon a beautiful culture…built on traditions. And in 5,000 years, we have adopted many religions…India gave birth to Hinduism, Buddhism, Jainism. Islam came here without conquering and we accepted. India is the only place where people who came here settled here without conquest, except the British. This country is built on a liberal tradition, in unity in diversity.”

However, he added that there have been a series of acts and omissions lately, which show a pattern to marginalise the minority community.

“…How is it unity in diversity if a Hindu has to get permission from Magistrate to marry a Muslim? How can you shackle love? And Magistrate will take his sweet time and all the fringe elements will come in. How is it democracy?

History shows, Akbar married a Rajput woman, and he allowed worship of Krishna… Today we feel if someone falls in love and marries, we think it is an attempt to convert. I don’t know where are we heading…”

Dave argued that though this case is ostensibly about uniform but, it is about how to tell Muslim students you are not allowed.

“This case is really about malice in law. It is about we are telling the minority community; you will do what we tell you…”

Emphasizing the significance of the liberal aspect of Indian civilization, Dave said the country is built on liberal tradition and there is unity in diversity. He submitted that if a Hindu girl asks a Muslim girl wearing hijab “why is she wearing it? And she talks about her religion. This is really beautiful”.

Dave added that the West has already permitted hijab and the American army has also allowed turbans. He said as one cannot quarrel with the right of Sikhs to wear turbans, similarly, one should also have no quarrel with the right of Muslim women to wear hijab, and stressed that for centuries, Muslim women have been wearing hijab in countries across the world.

He contended that hijab is important for Muslim women and it is their faith and added that somebody wants to wear the tilak, somebody wants to wear the cross, everybody has the right and that is the beauty of social life.

“How would wearing hijab threaten the unity and integrity of the country?” he said. At this, the bench replied that even the Karnataka High Court judgment does not say that and nobody is saying that.

The bench also said the argument here could be self-contradictory, saying the right to wear the hijab flows from Article 19 and it can be restricted only under 19(2) only by statutory law. Dave submitted that fundamental rights, in this case under Article 25, can be exercised anywhere.

The bench said some judgments talk about religious practice inside religious places. Dave said Article 25 uses the words freely practice, profess, and propagate religion, and a person can exercise fundamental rights anywhere, be it a classroom too.

He said if a Muslim woman thinks that wearing of hijab is conducive to her religion, no authority, or no court can say otherwise.

The hearing on the petitions challenging the Karnataka High Court’s judgment of March 15 upholding the ban on hijab in pre-university colleges will continue on Tuesday.

Dave also asked said ‘Fundamental rights not suspended merely by virtue of being in public place’.

“If a Muslim woman thinks that wearing of hijab is conducive for her religion, no authority, no court can say otherwise…Your lordships must give due weightage to the South African court, UK Court, French court. Our court has extensively borrowed from other jurisdictions.” he added.

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