Senior Advocate AM Dar appearing for a college student, said that wearing hijab is mandatory in Islam and public order will not be disturbed merely because a Muslim girl wears hijab.
“This is not a Hindu rashtra or an Islamic republic. It is a democratic sovereign secular republic where rule of law must prevail,” Dar said.
He emphasised that mere wearing of hijab will not cause any public order issue warranting a restriction under Article 25(1) of the Constitution.
“If someone desecrates image of Lord Rama or any Hindu goddess then it is public order issue. If you desecrate the image of another religion, then it hurts feeling and it can be public order. But simple covering head, how does it cause public order issue,” Dar demanded.
Dar was arguing before the Bench of Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and JM Khazi which was hearing batch of petitions filed by Muslim girl students in the State claiming that they were not being allowed to attend classes on account of the government order (GO) which effectively bans the wearing of hijab (headscarves).
The Court indicated during today’s hearing that it would finish hearing the parties by Friday, February 25.
Senior Advocate Devadatt Kamat in his rejoinder arguments, said that the State was citing Constitutional Morality to restrict choice, contrary to how the concept was used in pro-choice decisions of the Supreme Court.
During an earlier hearing, the State government had argued that the practice of wearing hijab must pass the test of Constitutional Morality laid down by the Supreme Court in the Sabarimala and Triple Talaq judgments.
Countering this, Kamat said,
“It is not a restriction on fundamental right. It is a restriction on State’s power. All the decisions – (which cited Constitutional Morality) Sabarimala, Navtej are all pro-choice decisions. Today, they are saying use Constitutional Morality to defeat choice.”