ICL Assignment 3

Submitted as per the requirement of the course curriculum of

“International Criminal Law” in School of Law

Submitted by: Submitted to:

SAUMYATA TYAGI ADV. JAI ANANT DEHADRAI

L18BALB037

BA.LLB (Hons.) 2018-23

 IN THE HON’BLE SUPREME COURT OF INDIA

IN THE MATTER OF:

WRIT PETITION NO. 2347/2022 (GM-RES) C/w

WRIT PETITION NO. 2146/2022 (GM-RES),
WRIT PETITION NO. 2880/2022 (GM-RES),
WRIT PETITION NO. 3038/2022 (GM-RES),
WRIT PETITION NO. 3424/2022 (GM-RES-PIL),
WRIT PETITION NO. 4309/2022 (GM-RES),
WRIT PETITION NO. 4338/2022 (GM-RES-PIL)

SUBMISSIONS ON BEHALF OF THE AMICUS CURIAE

It is most respectfully submitted:

1. That in the present case, the petitioners filed a complaint against the ban on wearing
hijab in educational institutions against which the Karnataka High Court judgement
stated that wearing a Hijab does not come under essential religious practices when it
comes to wearing them in educational institutions.
2. That, the High Court’s decision to uphold the ban of hijab was upon three
constitutional grounds. The first one being that under Islam, wearing of hijab cannot
be constituted as an essential religious practice and therefore it cannot be insulated
from the State’s regulatory power. Secondly, wearing a hijab comes under the
freedom of expression and the ban can be said to be a reasonable restriction upon the
exercising of those rights. Thirdly the Court said that there is no unconstitutional
discrimination against the Muslim women students as the Government order does not
single out the hijab and is fairly neutral.
3. That, the State Government stuck to their argument that a dress code has to be followed,
the petitioners side believe that it is a violation of their fundamental rights to profess
their religion. The argument from the State’s side has been that in educational
institutions, the dress code of religious clothing does not hold a place as the principle
followed in such places is of equality and uniformity. The display of religious
symbolism by the way of their clothing shall “lead to a student acquiring a distinct
 identity” and therefore “shall not be conducive for an academic environment.” The
Government argues that the decision made by them were made with regard to the
protection of public order.
4. That, with regard to the petitioners, they claim violation of their fundamental rights in
relation with right to freedom and dignity and professing their religion. In the 2016
Kerela High Court judgement, the All-India Medical Entrance Exam allowed the
Muslim women candidates to wear a hijab while giving the exam, stating that it is the
right of the women to dress on the basis of religious injunctions as it is a fundamental
right which is protected by Article 25(1) of the Indian Constitution as such
prescription of the dress is an essential part of the religion of that woman. The Delhi
High Court also in 2018 directed the CBSE to allow the Sikh candidate to wear a kara
and kirpan in the NEET exam hall even though wearing or carrying any metal items
were banned. In the year 2002, the Bombay High Court was also met with the
question of ban on hijab as a part of the school dress code and it was noted that
wearing a hijab was in actuality, an essential part of the religious practice as was also
cited in various Quran verses. Also, According, to the senior advocate, Dushyant
Dave, the controversy which arose over the hijab was more of a political issue which
was deliberately raised.
5. That, to put forth the issue and analyze it with the facts, arguments of the parties and
the judgement given by the Karnataka High Court, it can be said that the government
in this case, does not have the right to interfere with what clothing a person is wearing.
Expressing their religious freedom comes under Article 19(1)(a) of the Constitution and
therefore wearing a hijab by the Muslim women. Also, under the aspect of privacy
jurisprudence under Article 21. There is also violation of the doctrine of proportionality
as this government order suffers from massive arbitrariness and the non-application of
mind. The impugned order states that wearing of hijab ‘disrupts’ the public order, so
shouldn’t the state punish those who are responsible for such disruption rather than
banning the hijab altogether.
6. That, the ban on hijab is also violative of article 14 of the Constitution as it is violating
the autonomy that women have by not only creating discrimination caste wise but also
in the form of gender discrimination which is then again violative of Article 15. We
talk about the protection of women’s rights with respect to the discrimination they face
under international conventions as well but in our own educational institutions, we are
banning the entry of students on the basis that they cannot wear what their religious
 professes is discriminatory nature in itself. The contention of the respondents that
wearing a hijab does not constitute as essential religious practice cannot be taken as in
various judgements before as well, wearing hijab does come under the essential
religious practices and just because of politicization which is being done by the
Government, we cannot take away the fundamental rights which these women have and
therefore, the judgement of the Karnataka High Court can be said to be arbitrary in
nature.
7. That, the Amicus Curiae seek to rely on the above-mentioned provisions before the
Hon’ble Court and state that the impugned judgement of the Hon’ble High Court of
Karnataka is violative of the fundamental rights of the petitioners.

THROUGH Saumyata Tyagi