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Sanjeev Kumar Patro

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  • The AG further submitted that if the argument of exercising right under Art 19(1) (a) is accepted, then persons who do not wish to wear have their fundamental right not to wear it. That means an element of the option is there. So, the 19(1)(a) argument makes it mutually destructive,

A month is already over. The fight over to veil or unveil rages on from streets to the echelons of the higher judiciary. The Karnataka HC today resumed the hearing on the PIL filed by the Muslim girl students from Karnataka over not being allowed to bear hijab in edu institutes.

Arguing for the Karnataka government, when Advocate General Prabhuling Navadgi mentioned that one cannot argue both Article 25 and Article 19(1)(a), Justice Dixit asked "Are they mutually exclusive?

To which, the AG had replied, "They are mutually destructive."

What Is Art 19(1)(a): This article guarantees to all its citizens the right to freedom of speech and expression. The law states that “all citizens shall have the right to freedom of speech and expression”.

What is Art 25: This article guarantees the freedom of conscience, the freedom to profess, practice and propagate religion to all citizens.

How It Is Destructive?

Making further submissions, the AG argued that if higher courts declare that any dress is "essential" to a religion, the consequences are that every person (in that community) MUST accept it. Then it will become an element of compulsion, AG argued.

At this point, CJ RR Awasthi asked, "Is not restraining someone to wear what one wants a violation of Art 19(1)(a).

The submission AG then made was, "There is no ban on hijab in the country. The right to wear under 19 (1) (a) is subject to reasonable restrictions under Art 19 (2).

Arguing further, the AG said, "There is Rule 11 which imposes reasonable restrictions on wearing headscarves. The independent claim of Art 19(1) cannot go together with that of Art 25."

The AG further submitted that if the argument of exercising right under Art 19(1) (a) is accepted, then persons who do not wish to wear have their fundamental right not to wear it. That means an element of the option is there. So, the 19(1)(a) argument makes it mutually destructive, he argued.

What is Art 19 (2): Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, public order, decency or morality etc

What is Rule 11: This rule is a part of the Educational act 1885, which says uniform is a must for educational institutes and that can be prescribed by the recognised institute, not the government.

On Hijab Essential In Islam

Advocate General Prabhuling Navadgi making his submission referred to the SC judgement on Mohd. Hanif Quareshi & Others vs The State Of Bihar (April 1958), where the petitioner had challenged the Bihar government's law banning cow slaughter.

The petitioner then had put forth the argument that this is essential to Islam.

As per AG's argument, there have been no such Surahs that speak about hijab 'essential' to Islam.

The Mahendra Kapoor Song

After a long submission, in his concluding argument, the AG had said, "This morning when I was coming to the Court I heard a beautiful Hindi song "Naa moon chhupake jiyo, Aur naa sar jhuka ke jiyo."

He further added that women's dignity must be kept in mind.

The Hindi song AG Navadgi referring to was sung by late celebrated singer Mahendra Kapoor in 1963. The song featured in the film Humraz with Raaj Kumar and Sunil Dutt in the lead.

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