This document outlines the key details of a court case being heard by the Moot Court of the School of Legal Studies. [1] The case involves a challenge to a government order in Karnataka that prohibited students from wearing religious symbols, including headscarves, to school. [2] The order claimed this prohibition did not violate constitutional rights. [3] The High Court upheld the order, finding no substantive rights violations, but an appeal was made to the Supreme Court. The memorandum outlines the jurisdiction of the appeal and the key issues being raised regarding students' rights and whether wearing headscarves is an essential religious practice protected by the constitution.
This document outlines the key details of a court case being heard by the Moot Court of the School of Legal Studies. [1] The case involves a challenge to a government order in Karnataka that prohibited students from wearing religious symbols, including headscarves, to school. [2] The order claimed this prohibition did not violate constitutional rights. [3] The High Court upheld the order, finding no substantive rights violations, but an appeal was made to the Supreme Court. The memorandum outlines the jurisdiction of the appeal and the key issues being raised regarding students' rights and whether wearing headscarves is an essential religious practice protected by the constitution.
This document outlines the key details of a court case being heard by the Moot Court of the School of Legal Studies. [1] The case involves a challenge to a government order in Karnataka that prohibited students from wearing religious symbols, including headscarves, to school. [2] The order claimed this prohibition did not violate constitutional rights. [3] The High Court upheld the order, finding no substantive rights violations, but an appeal was made to the Supreme Court. The memorandum outlines the jurisdiction of the appeal and the key issues being raised regarding students' rights and whether wearing headscarves is an essential religious practice protected by the constitution.
This document outlines the key details of a court case being heard by the Moot Court of the School of Legal Studies. [1] The case involves a challenge to a government order in Karnataka that prohibited students from wearing religious symbols, including headscarves, to school. [2] The order claimed this prohibition did not violate constitutional rights. [3] The High Court upheld the order, finding no substantive rights violations, but an appeal was made to the Supreme Court. The memorandum outlines the jurisdiction of the appeal and the key issues being raised regarding students' rights and whether wearing headscarves is an essential religious practice protected by the constitution.
UPON SUBMISSION TO THE HONOURABLE JUDGES OF THE MOOT COURT
MEMORANDUM ON THE BEHALF OF THE RESPONDENT
The Respondent
SEETHALAKSHMI T V TABLE OF CONTENTS
INDEX OF AUTHORITIES
STATEMENT OF FACTS
STATEMENT OF JURISDICTION
ISSUES RAISED
SUMMARY OF ARGUMENTS
ARGUMENTS ADVANCED
PRAYER INDEX OF AUTHORITIES
CASES
Commissioner Hindu Religious endowments Madras vs Sri
Lakshmindra Thirtha swamiar of Sri shirur Mutt Durga commitee Ajmer vs Syed Hussain ALI 41 Ismail Faruqui vs Union of India Narayana Deekshitulu vs State of Andra Pradesh Javed vs State of Haryana Commissioner of police vs Acharya Jagadishwarananda Avadhutha Ajmal Khan vs. The Election commission Shayara Bano vs Indain young Lawyers Association Fathima Hussain sayed vs Bharat Education society and ors(AIR 2003 BOM 75) Chintaman Rao vs State of Madhyapradesh Mohd. Faruq vs State of Madhyapradesh
The primary issue in this case was whether the State can impose restrictions on the fundamental rights of students, including the right to dignity, privacy and freedom of expression, on the grounds of ensuring ‘uniformity and equality’. The Appellant approached the Court to determine the constitutionality of the Government Order issued under the Karnataka Education Act, 1983. The Order stated that wearing religious symbols, including headscarves, posed an obstacle to unity and uniformity amongst students. Moreover, it claimed that the prohibition on wearing headscarves in schools and colleges was not violative of Article 25 of the Constitution.
Pursuant to the Government Order, several educational
institutions denied entry to female Muslim students unless they removed their hijab prior to entering the school/college premises. Two aggrieved pre-university college students, along with other interested parties, filed appropriate writ petitions before the High Court of Karnataka, seeking remedies against the Government Order. The High Court upheld the constitutional validity of the Order and the restrictions placed on the wearing of headscarves in schools/colleges.
The High Court held that the aspects of the students’ rights (including the freedom of expression and the right to privacy) that were curtailed were notthe substantive rights guaranteed under Article 19(1)(a) and Article 21 of the Constitution. Since the curtailed rights were derivative and ancillary to the rights guaranteed under Article 19(1)(a) and Article 21 of the Constitution, the Government Order did not violate any fundamental rights.
Aggrieved by this decision, the Appellant preferred an appeal
before the Supreme Court. STATEMENT OF JURISDICTION The applicant has approached the Hon’ble supreme court of India, under Art.136 of the constitution of the India.
SPECIAL LEAVE TO APPEAL BY THE SUPREME COURT
1. Notwithstanding anything in this chapter, supreme
court may, in its discretion, grant special leave to appeal from any judgement, decree, determination, sentence or any order by any cause or matter passed ormade by any court or tribunal in the territory of india.
2. Nothing in the clause (1) shall apply to any judgement,
determination, sentence or order passed or made by any court or tribunal constituted byor under any law relating to the armed forces.
The Hon’ble moot court of School of Legal Studies exercises
the jurisdiction to hear and adjourn the matter. ISSUES RAISED
1. WHETHER REQUIRING STUDENTS TO WEAR
PRESCRIBED UNIFORMS VIOLATED THEIR FUNDAMENTAL RIGHTS INCLUDING THOSE PROTECTED BY ARTICLE 19[1][a] AND ARTICLE 21?
2. WHETHER THE ISSUED GOVERNMENT ORDER
ARBITRARY OR CONTRARYTO THE ARTICLES OF 14 AND 15?
3. WHETHER WEARING THE HIJAB/HEAD SCARF IS A
PARTB OF ESSETIAL RELIGIOUS PROTECTED BY ARTICLE 25 OF THE CONSTITUTION? SUMMARY OF ARGUMENTS
1. WHETHER REQUIRING STUDENTS TO WEAR
PRESCRIBED UNIFORMS VIOLATED THEIR FUNDAMENTAL RIGHTS INCLUDING THOSE PROTECTED BY ARTICLE 19 [1] [a] AND ARTICLE 21?
Requiring students to wear prescribed uniforms is not
violative of Article 19 (1) (a) or Article 21 of the Indian Constitution. Uniform reduces socioeconomic disparities, and encourages children to focus on their studies rather than their clothes. School uniforms promote school spirit and make students feel they all belong together. Further, the state is not restricting students from exercising the right to privacy or freedom of speech and expression since it is only regulating the exercising of these rights during the school hours on working days.
2. WHETHER THE ISSUED GOVERNMENT ORDER
ARBITRARY OR CONTRARY TO THE ARTICLES 14 AND 15?
The government rule regarding the banning of hijab is not
violative or contrary to article 14 and 15 of constitution of India. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.Article 14 rejects any type of discrimination based on caste, race, and religion, place of birth or sex. This rule helps to bring up the equality and discipline among the students. 3. WHETHER WEARING THE HIJAB/HEAD SCARF IS A PARTB OF ESSETIAL RELIGIOUS PROTECTED BY ARTICLE 25 OF THE CONSTITUTION?
Article 25 is not absolute, and that the wearing of hijab or head
scarf is nota part of the ‘essential religious practice’ of Islamic faith, since the Quran does not contain any such injunctions.The power to prescribe school uniform is inherent in the concept of school education itself, and the impugned government order only authorizes the prescription of dress code by the institutions on their own and does not prescribe any by itself.The freedom of conscience, the right to practice religion, the right to expression and the right to privacy are all subject to reasonable restriction or regulation by law. ARGUMENTS ADVANCED
3.WHETHER WEARING HIJAB /HEAD SCARF IS A PART OF
ESSENTIAL RELIGIOUS PRACTICE PROTECTED BY ARTICLE 25 OF THE INDIAN CONSTITUTION?
Before The Honourable court it is humbly stated that wearing the
hijab/head scarf is not a part of essential religious practice protected by article 25 of the Indian Constitution.
Article 25. Freedom of conscience and free profession, practice and
propagation of religion.
—(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—
(a) regulating or restricting any economic, financial, political or
other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Explanation I.—The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation II.—In sub-clause (b) of clause (2), the reference to
Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.
(1).Whatever rights petitioners claim under Article 25 of the
Constitution, are not absolute. They are susceptible to reasonable restriction and regulation by law.
(2). The wearing of hijab cannot be claimed by the students as a
matter of right. Wearing hijab or head scarf is not a part of ‘essential religious practice’ of Islamic faith; the Holy Quran does not contain any such injunctions; the Apex Court has laid down the principles for determining what is an ‘essential religious practice’ vide COMMISSIONER HINDU RELIGIOUS ENDOWMENTS MADRAS vs. SRI LAKSHMINDRA THIRTHA SWAMIAR OF SRI SHIRUR MUTT DURGAH COMMITTEE, AJMER vs. SYED HUSSAIN M. ISMAIL FARUQUI vs. UNION OF INDIA NARAYANA DEEKSHITULU vs. STATE OF ANDHRA PRADESH JAVED vs. STATE OF HARYANA COMMISSIONER OF POLICE vs. ACHARYA JAGADISHWARANANDA AVADHUT AJMAL KHAN vs. THE ELECTION COMMISSION SHAYARA BANO, INDIAN YOUNG LAWYERS ASSOCIATION.
There is a big shift in the judicial approach to the very idea of
essential religious practice in Islamic faith since the decision in SHAYARA BANO, supra, which the case of the petitioners overlooks. To be an essential religious practice that merits protection under Article 25, it has to be shown to be essential to the religion concerned, in the sense that if the practice is renounced, the Religion in question ceases to be the religion.
There are following five pointers to determine whether a religious
practice is essential to the religion: 1.The practice must be fundamental to the religion from times immemorial; 2.Not following the practice would alter the nature of the religion; 3.The practice must be compelling; 4.The punishment for not following the practice must be prescribed in the religious text; 5.The practice must be essential to the religion, and not essentially religious.
Wearing hijab at the most may be a ‘cultural’ practice which has
nothing to do with religion. Culture and religion are different from each other.
(3) The educational institutions of the kind being ‘qualified public
places’, the students have to adhere to the campus discipline and dress code as lawfully prescribed since years i.e., as early as 2004. The parents have in the admission forms of their wards (minor students) have signified their consent to such adherence. All the students had been accordingly adhering to the same all through. It is only in the recent past; quite a few students have raked up this issue after being brainwashed by some fundamentalist Muslim organizations like Popular Front of India, Campus Front of India, Jamaat-e-Islami, and Students Islamic Organization of India. An FIR is also registered. Police papers are furnished to the court in a sealed cover since investigation is half way through. Otherwise, the students and parents of the Muslim community do not have any issue at all. Therefore, they cannot now turn around and contend or act to the contrary.
(4) The power to prescribe school uniform is inherent in the concept
of school education itself. There is sufficient indication of the same in the 1983 Act and the 1995 Curricula Rules. It is wrong to argue that prescription of uniform is a ‘police power'. Section 7(2) of the Karnataka Education act stipulates that all the school students studying in Karnataka should behave in a fraternal manner, transcend their group identity and develop orientation towards social justice. Under section 133 of the above law the govt has the authority to issue directions to schools and colleges in this regard.
(5) The right to wear hijab if claimed under Article19(1)(a), the
provisions of Article 25 are not invocable in asmuch as the simultaneous claims made under these two provisions are not only mutually exclusive but denuding of each other. In addition, be it the freedom of conscience, be it the right to practise religion, be it the right to expression or be it the right to privacy, all they are not absolute rights and therefore, are susceptible to reasonable restriction or regulation by law, of course subject to the riders prescribed vide CHINTAMAN RAO vs. STATE OF MADHYA PRADESH and MOHD. FARUK V. STATE OF MADHYA PRADESH, supra.
There are countries that have banned women from wearing hijab and not all Muslim women in India wear the hijab, this demonstrates that it is not an essential religious practice within Islam. since the hijab is not an essential religious practice, the court must look squarely into the reasonableness of the restriction on students imposed by the prescribed school uniform. In the case of Fatima Hussain Syed v/s Bharat Education Society and Ors. (AIR 2003 Bom 75), in a similar incident regarding the dress code, when a controversy occurred at Kartik High School, Mumbai. The Bombay High Court appraised the matter, and ruled that it was not a violation of Article 25 of the Constitution for the principal to prohibit the wearing of head scarf or head covering in the school. Doctrine of ERP
The ERP doctrine, developed over years of SC jurisprudence, governs
which religious practices are protected under Articles 25 & 26 of the Constitution. The ERP test allows Courts to recognise beliefs and practices that are so ‘essential’ to a religion that doing away with them would change the very nature of that religion. The ERP doctrine dictates that only these essential practices are protected from government interference. A unique problem with the ERP Test resurfaced in the Hijab hearings.So there is a contrary that whether its absolutely necessary to wearing hijab or not.
Referring to a catena of past decisions of this court holding that
triple talaq, polygamy, offering of namaz at a mosque and cow slaughter are not essential religious practices within Islam.
Therefore this Hon'ble court pleased to declare that wearing the
hijab /head scarf is not a part of essential religious practice protected by article 25 of the Indian constitution. PRAYER
In view of the facts and circumstances stated above, it is most
respectfullyprayed that this Hon’ble Court may be pleased to ; (a) Declaring that the government order not violating the fundamental rightsincluding Article 19(1)(a) and Article 21. (b) Declaring that the government order is not arbitrary and violative of theArticle 14 and Article 15 of the constitution. (c)since hijab is not the essential religious practice , persistence of the government rule, which brings the equality and discipline among students. AND (d) Pass any other writ, order or direction that this Hon’ble Court may deemfit and necessary in the interest of justice
AND FOR THIS ACT OF KINDNESS THE RESPONDENTS AS IN
DUTY BOUNCE SHALL EVER PRAY . The Respondents Aalok J Fathima Mehnas TK Seethalakshmi T V
