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Hijab row | Heckler’s veto cannot be allowed, petitioner tells Supreme Court

State’s responsibility to protect belief if it does not violate public order: petitioner

September 08, 2022 04:04 pm | Updated September 22, 2022 09:41 am IST - NEW DELHI

Students who refused to attend classes coming out from G. Shankar Govt First Grade College in Udupi on Wednesday, and (below) students attending class wearing hijabs in Bengaluru.

Students who refused to attend classes coming out from G. Shankar Govt First Grade College in Udupi on Wednesday, and (below) students attending class wearing hijabs in Bengaluru. | Photo Credit: H.S. MANJUNATH

Wearing a hijab in the street does not offend public order, but can schools not intervene to maintain public order if a student wears it to school, the Supreme Court asked on September 8, 2022.

To this, senior advocate Devadautt Kamat, appearing for Aishat Shifa, a student from Karnataka who was banned from entering her classroom wearing a hijab, said schools have no say in deciding public order.

Maintaining public order is the responsibility of the State, Mr. Kamat contended.

"If I wear a headscarf and someone is offended and shouts slogans, the police cannot turn to me and say not to wear hijab. That will be the heckler's veto," the senior lawyer argued.

Mr. Kamat asked whether the government can restrict speech and expression of honest beliefs and choices merely on the possibility of a violent reaction by hecklers.

"The State, instead of prohibiting me, must ensure conditions in which freedoms must flourish… Last day the State Advocate General said the government order on hijabs was issued after some students demanded to wear orange shawls… Is heckler's veto permitted?" he asked.

Mr. Kamat said the argument of Karnataka was "look here, if we allow you to wear hijab, some will want to wear orange shawls".

"Wearing of orange shawls is a belligerent display of religious jingoism… 'You are wearing a headscarf, I will wear something to show my identity. That Article 25 does not protect. It protects an innocent display of faith. Naamam, yes. Tilakam, yes. A rudraksham, yes… Bonafide and innocent display of faith is protected," the senior advocate argued.

He said it may also be a person's honest belief that wearing a kada or naamam may make him a better person. "It is the State's obligation to protect my belief as long as it does not violate public order, health or morality," Mr. Kamat said, asking how a display of "honest belief" by wearing hijab affects any of the three criteria.

Mr. Kamat said every practice may not be an essential or core religious practice. "But that does not mean the state can restrict it… I can wear whatever I want, even though it may not be part of my essential religious practice, as long as I do not hamper public order, health or morality," he submitted.

"Just because other people can get offended is not a ground for prohibiting me from wearing a hijab," he said.

Advocate Nizam Pasha, who argued next for the petitioner students, said to make a Muslim student choose between education and the hijab was a violation of Article 19 (freedom of expression).

The Bench asked whether "all religions accept the same God".

To this Mr. Pasha replied that the Quran mandated respect towards other religions.

He quoted the verse "O you disbelievers, I do not worship what you worship, nor do you worship what I worship. I will never worship what you worship nor will you ever worship what I worship. You have your way, I have my way".

The court adjourned the hearing to continue on Monday at 2 p.m.

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