TC: 13

BEFORE

THE HON’BLE SUPREME COURT OF INDISTAN

SPECIAL LEAVE PETITION NO. : _____/2022

UNDER ARTICLE 136 OF THE CONSTITUTION OF INDISTAN

ZIKRA
(PETITIONER)
v.

STATE OF BHIRATAKA
(RESPONDENTS)
___________________________________________________________________________
SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE CONSTITUTION OF
INDISTAN CHALLENGING THE JUDGEMENT OF THE HON’BLE BHIRATAKA
HIGH COURT

MEMORIAL ON BEHALF OF THE APPEALANTS

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 TABLE OF CONTENTS

List of Abbreviations-------------------------------------------------------------

Index of Authorities--------------------------------------------------------------

Books and Commentaries------------------------------------------------

Statutes and Legislations referred---------------------------------------

Table of Cases-------------------------------------------------------------

Statement of Jurisdiction--------------------------------------------------------

Statement of Facts----------------------------------------------------------------

Issues Raised----------------------------------------------------------------------

Summary of Arguments---------------------------------------------------------

Arguments Advanced------------------------------------------------------------

ISSUE 1. Whether the special leave petition filed by the petitioner is maintainable

--------------------------------------------------------------------------------------

ISSUE 2. Whether wearing of Hijab/headscarves by Muhlikh women constitutes the essential

religious practice?----------------------------------------------------------------

ISSUE 3. Whether a Muhlikh can assert its claim to do so under right to manage its own
religious affairs-------------------------------------------------------------------

ISSUE 4. Whether the direction issued by the College Development Community is violative
of provisions enshrined in the Constitution of Indistan?-------------------

Prayer-----------------------------------------------------------------------------

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 List of Abbreviations

Sec. – Section

SLP – Special Leave Petition

AIR – All India Reporter

Hon’ble – Honourable

No. – Number

v. – Versus

pg – Page

pgs – Pages

SC – Supreme Court

SCC – Supreme Court Cases

HC – High Court

Ors. – Others

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 Index of Authorities

Books and Commentaries:

1. M.P Jain, Indian Constitutional Law, 8th Edition 2022

2. V.N. Shukla, Constitution of India, 13th Edition 2017

Statutes and Legislation:

1. The Constitution of India, 1950

2. ICCPR, March 23 1976, Article 18
3. Convention against Discrimination in Education, 1960

Table of Cases:

Pritam Singh v. The State 1950 AIR 169, 1950 SCR 453
Kunhayyamad v. State of Kerala (2000) 6 SCC 359
Tirupati Balaji Developers Pvt. Ltd v. State of Bihar AIR 2004 SC 2351
Jamshed Wadia v. Board of Trustees, Port of Mumbai  AIR 2004 S.C. 1815
Antulay v RS Naik 1988 AIR 1531
Ahman Bint Basheer v. CBSE 2016 (2) KLT 601
Sri Venkataramana Devaru v. State of Mysore 1958 AIR 255
Indian Young Lawyers Association v. State of Kerala (2019) 11 SCC 1

Prakash Jha Production and Anr v. Union of India 2011 (9) SCALE 265
Gulam Abbas v. State of UP 1981 AIR 2198
Indibily Creative Pvt. Ltd. v. State of West Bengal 2019 SCC OnLine SC 564
Terminiello v. Chicago 337 U.S. 1 (1949)
Brown v. Lousiana 383 U.S. 131 (1966)
Tinker v. Des Moines 393 U.S. 503 (1969)
Union of India v. K.M Shankarappa ILR 1990 KAR 4082
NALSA v. Union of India AIR 2014 SC 1863
City of Chicago v. Wilson 75 Ill. 2d 525 (1978)

Doe v. Yunits 924 (D.C. Cir. 1991)

K.S Puttaswamy v. Union of India (2017) 10 SCC 1)
Navtej Singh Johar v. Union of India (2018) 10 SCC 1

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 Society for Unaided Private Schools of Rajasthan v. Union of India (1997) 6 SCC 241
Indian Medical Assn. v. Union of India (2011) 7 SCC 179
The Ahemdabad St. Xaviers College v. State of Gujrat and Anr. 1974 AIR 1389
Bijoy Emmanuel v. State of Kerala 1987 AIR 748

Statement of Jurisdiction

The counsel for the petitioner , Zikra, hereby humbly submit to this hon’ble court’s
jurisdiction under Article 136 of the Constitution of Union of Indistan. Article 136 of the
Constitution of Indistan reads as follows:

136. Special leave to appeal by the Supreme Court

(1)  Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India
(2)  Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces
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 Statement of Facts

1. Bhirataka, a State situated in the southern part of Indistan, an educational

institution by the name of Kudupi Women’s PU (pre-university) College gave a
direction in December 2021 to ban the wearing of hijabs within the premises of
the College.

2. Muhlikh students who used to exercise the practice of hijab got prevented from
the college to attend classes on the sole ground that they wear hijabs. While, the
Muhlikh students insisted that they be allowed to exercise hijab as they are not
wearing the same of different colour or on a different uniform, rather they wear
headscarves of the same colour as the uniform.The directive against the practice
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 of Hijab was issued by the College Development Committee (CDC) of Kudupi
Women’s PU (pre-university) College, consisting of MLA and subordinates in the
state.

3. Muhlikh students comprehended that hijab is a practice that has never been
questioned in Indistan as it was in adherence to the provisions of the Constitution
of Indistan. It is because of the people associated with communal organisations
that are now at the behest of political power in the state of Bhirataka that such
bizarre restrictions were being made targeting the minorities.

4. As per the Muhlikh students, Hijab is an essential religious practice in their

religion, and suspension of the same, even for a few hours during school,
undermines the community’s faith and violates their fundamental rights under the
Constitution of Indistan.

5. On the other hand, the college authorities claim that wearing of headscarf is not
protected by rights and freedoms under the Constitution of Indistan. According to
the College Development Community (CDC) of Kudupi Women’s PU (Pre-
University) College,the Hijab practice carries abhorrence of having a deleterious
effect on society. It further claims that the display of religion and culture in public
educational institution is nothing less than a “parade of horrible ".

6. Further, they say that the secular ethos promised in the Indistan Constitution will
severely be undermined, if symbolic display in educational institutions be allowed
of such nature. This will have adverse effect on the disciplinary and uniformity
beliefs of the educational institutes, after all what shall at all remain uniform
amongst students, if every other person would be keen to display his/her religious
and/or cultural symbolism in places of learning.

7. A bunch of petitions were filed in the Bhirataka High Court concerning the
school/college code and that of religious/cultural symbolic portrayal by the
students in the premises of the educational institutions. The Bhirataka High Court
listed all the petitions together and heard the merits in Zikra and Ors. v. State of
Bhirataka on 11th of January, 2022.
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 8. The Bhirataka High Court favoured the educational institutions declaring that
uniform code must be followed by all the students regardless of the community
and their identity. The students have approached the Hon’ble Supreme Court of
Indistan under the provision of Special Leave Petition (SLP), challenging the
judgement given by the Birataka High Court.

Statement of Issues

ISSUE 1. Whether the special leave petition filed by the petitioner is maintainable?

ISSUE 2. Whether wearing of Hijab/headscarves by Muhlikh women constitutes the essential

religious practice?

ISSUE 3. Whether a Muhlikh can assert its claim to do so under right to manage its own
religious affairs?

ISSUE 4. Whether the direction issued by the College Development Community is violative
of provisions enshrined in the Constitution of Indistan?

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 Summary of Arguments

ISSUE 1. Whether the special leave petition filed by the petitioner is maintainable?

It is humbly pleaded before this Hon’ble Court that under Article 136 of the Constitution of
India, any person, aggrieved by any decision or order of any court in India can approach the
Supreme Court through Special Leave Petition. The jurisdiction given under Art. 136 on the
SC is a corrective one and not a restrictive one. Questions like whether wearing hijab is an
essential practice in Islam, should it be covered under freedom of expression and freedom of
choice? , whether article 21 is violated in this case ; are substantial questions of law and are
of general public importance. Hence, Article 136 can be invoked for the same.

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ISSUE 2. Whether wearing of Hijab/headscarves by Muhlikh women constitutes the
essential religious practice?

It is humbly submitted to this Hon’ble court that wearing Hijab by Muhlikh women
constitutes the essential religious practice. Essentiality of Hijab in Islam has been interpreted
by various learned Muslim scholars. Hijab has also been talked about in the religious books
of Islam. Various tests have been laid down by this court which, when applied, makes the
practice of wearing it essential to the Muslim religion.

ISSUE 3. Whether a Muhlikh can assert its claim to do so under right to manage its
own religious affairs?

It is humbly submitted to this Hon’ble court that a Muhlikh can assert its claim to wear Hijab
under right to manage its own religious affairs. The Constitution gives right to its citizens to
manage their religious affairs or denominations . However, this right has to be exercised in a
manner that is in conformity with public order, morality, and health. It is pleaded that
wearing hijab in the college will not be causing any sort of public disorder and is in
conformity with morality and health which are the only cases where the government can put a
bar on the rights of the citizens to manage their religious affairs. The order is also violative of
various international covenants and treaties. Hence banning the practice would violate Article
26 of the muslim girl students.

ISSUE 4. Whether the direction issued by the College Development Community is

violative of provisions enshrined in the Constitution of Indistan?

It is humbly submitted to this court that the direction issued by the College Development
Community is violative of provisions enshrined in the Constitution of Indistan. It violates
Article 19, 21, 25, 26, 15 and is in contravention to articles 13 and 14.

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 Arguments advanced

ISSUE 1. Whether the special leave petition filed by the petitioner is maintainable?

It is humbly pleaded before this Hon’ble Court that under Article 136 of the Constitution of
India, any person, aggrieved by any decision or order of any court in India can approach the
Supreme Court through Special Leave Petition. The Petitioner has the locus standi to
approach the Hon’ble Supreme Court as civil appeals not covered by Article 133 can be
brought to the apex court under Article 136. Furthermore, jurisdiction of Supreme Court can
always be invoked when a question of law of general public importance arises. Also, in case
at hand the ‘substantial’ questions of law are involved. The jurisdiction given under Art. 136
on the SC is a corrective one and not a restrictive one. Questions like whether wearing hijab
11
is an essential practice in Islam, should it be covered under freedom of expression and
freedom of choice? , whether article 21 is violated in this case ; are substantial questions of
law and are of general public importance. Hence, Article 136 can be invoked for the same.

1.1 Grounds on which a petition of special leave is maintainable:

 In the cases of Pritam Singh v. The State, Kunhayyamad v. State of Kerala,
Tirupati Balaji Developers Pvt. Ltd v. State of Bihar and Jamshed Wadia v.
Board of Trustees, Port of Mumbai the Supreme Court has held that SLP can
only be filed in the following circumstance -where there is gross miscarriage
of justice or gross violation of fundamental rights. In Tirupati Balaji
Developers Pvt. Ltd v. State of Bihar the Supreme Court held that Article 136
vests discretion in the Supreme Court which is meant to be exercised on the
consideration of justice, call of duty and eradicating injustice.
 The Supreme Court holds that as the court of last resort it has an inherent
power to correct its own previous decisions or the lower courts ,which may be
in violation of the law or the constitution or fundamental rights causing gross
injustice to any party. Such ruling arrived at the Antulay v RS Naik (AIR 1984,
SC 684) case, where the petitioner sought to invalidate decisions from an
earlier case involving the same parties and issues in the apex court.

1.2 Why in the present case SLP must be maintainable

 In the present case the High Court has based its judgement on the sole reason
that there must be uniformity which should be maintained and uniform code
must be followed by all the students regardless of their community and
identity. It is pleaded before this court that the Hon’ble HC of Bhirtaka has
failed to take into consideration some important and relevant issues and
points: a) the prevailing social conditions(orthodoxy among Muhlikh families
and decreasing literacy rates among Muhlikh girls) and social problems which
may arise if hijab is banned in colleges/educational institutes b) essentiality of
hijab in muslim religion c) banning hijab would go against various
international statutes and conventions to which India is a party.

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 literacy rate of Muslim females is only 51.9% which is lower than all other
religious communities and it is even lower than the national average of
females i. e. 65.46%.( Census 2011) . Educationally Muslim comprise one of
the most backward communities in the country. Muslim girls and women lag
behind their male counterparts and women of all other communities. Among
the Muslims, 17.6% is the dropout rate, higher than the national average of
13.2%. As many as 25% of Muslim children in the age group of 6 to 14 years
have either never attended school or have dropped out. Muslims have the
highest dropout rate in the country. Religion plays an important role in a
households structure and power dynamics in Muhlikh religion. Even now
there is high orthodoxy among muslim families in India . Clothing, and how
girls and women should dressup outside homes is something which is strictly
adheared by most of the muslim families and this is also in detail talked about
in the Quran and the Hadith. Hijab according to the Oxford Encyclopedia of
the Islamic World and Encyclopedia of Global Religion was originally used to
denote a partition, a curtain, or was used generally for the Islamic rules of
modesty and dress for females. The term for headscarf in
the Quran is khimār  For some, the hijab is worn by Muslim girls and women
to maintain modesty and privacy from unrelated males. According to
the Encyclopedia of Islam and Muslim World, modesty concerns both men's
and women's "gaze, gait, garments". The Qur'an instructs Muslim women and
men to dress modestly. For many women, according to the World Islamic
Survey 2016, Hijab is seen as a symbol of freedom, liberation and strength. It
is seen by many as a part of their cultural and religious identity and lifestyle.
 The Survey 4 of NFHS-4 and All India Census Report clearly shows the
strong orthodoxy prevailing in Muslim families in India( especially strict rules
for girls and women). If Hijab is banned, It would aggravate the already
existing problems faced by Muhlikh girls. It may lead to denial of education as
orthodox families would not be willing to send their girl child to school
without the head covering.
 Banning Hijab would violate fundamental rights like- Article 25,26, 21, 19, 14
and 13. How the rights mentioned in these articles would be violated is
something which is discussed in great details in upcoming issues.
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  Essentiality of Hijab in Muhlikh religion – The HC of Bhirataka in the present
case, hasn’t discussed the point of essentiality in greater details. Wearing of
hijab (head – scarf) is an ‘essential religious practice’ in Islam . The same is
discussed in various Supreme Court judgements

ISSUE 2. Whether wearing of Hijab/headscarves by Muhlikh women constitutes the

essential religious practice?

 Wearing of hijab is an essential practice in Islam. The same being a Quranic

injunction vide Ajmal Khan vs. Election commission of India and Amnah
Bint Basheer vs. Central Board of Secondary Education . Neither the schools
nor the state gov. can prescribe a dress code/uniform that does not permit the
students to wear hijab. The action of the respondent – schools in insisting upon
the removal of hijab in the educational institutions is impermissible, it is
violative of the fundamental right guaranteed under Article 25 of the
Constitution vide SRI VENKATARAMANA DEVARU vs. STATE OF
MYSORE and INDIAN YOUNG LAWYERS ASSOCIATION vs. STATE
OF KERALA. Hence in light of the above arguments it is clear that SLP
should be taken into consideration.
 In the Shirur Mutt case it was said that “A religion undoubtedly has its basis
in a system of beliefs or doctrines which are regarded by those who profess
that religion as conducive to their spiritual well being, but it would not be
correct to say that religion is nothing else, but a doctrine or belief. A religion
may not only lay down a code of ethical rules for its followers to accept, it
might prescribe rituals and observances, ceremonies and modes of worship
which are regarded as integral parts of religion, and these forms and
observances might extend even to matters of food and dress..The guarantee
under our Constitution not only protects the freedom of religious opinion but it
protects also acts done in pursuance of a religion and this is made clear by the
use of the expression " practice of religion. " The essentiality test was laid
down in the Shirur Mutt case.

 Any law made by authority cannot interefere with the or obstruct any essential
religious practice. Further in The SC has clearly stated in Prakash Jha
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 Production and Anr v Union of India and Viacom Media 18 Pvt. Limited v
Union of India, that the state cannot utilise the Heckler’s veto to attempt to
silence individuals. The court observed that the state has an obligation to
ensure that permissible speech is provided the adequate protection required in
order to ensure it is not silenced by threats of causing violence. It has been
established that the Hijab is a permissible form of symbolic speech, therefore
the state is obligated to protect the wearers of the Hijab.

 An opinion poll conducted in 2014 by The University of Michigan's Institute

for Social Research asked residents of seven Muslim-majority countries
(Egypt, Iraq, Lebanon, Tunisia, Turkey, Pakistan, and Saudi Arabia) which
style of women's dress they considered to be most appropriate in public.
 The survey found that the headscarf (in its tightly- or loosely-fitting form)
[58]

was chosen by the majority of respondents in Egypt, Iraq, Tunisia and Turkey.
 In Saudi Arabia 63% gave preference to the niqab face veil; in Pakistan
[58]

the niqab, the full-length chador robe and the headscarf, received about a third

of the votes each; while in Lebanon half of the respondents in the sample
(which included Christians and Druze) opted for no head covering at all.

 The Hadith sources specify the details of hijab (Islamic rules of dress) for men
and women, exegesis of the Qur'anic verses narrated by sahaba, are a major
source which Muslim legal scholars used to derive their rulings. The Qur'an
instructs both Muslim men and women to dress in a modest way, yet there is
disagreement on how these instructions should be followed. The verses
relating to dress use the terms khimār (veil) and jilbab (a dress or cloak). The
word khimar is commonly translated as "head coverings". The word ḥijāb in
the Quran refers not to women's clothing, but rather a spatial partition or
curtain.
 It is submitted that the Qur'an is the highest in the hierarchy of sources of
divine injunction for Muslims, being the direct word of God, followed by
hadees (or hadith), which are Prophetic traditions, and thereafter, consensus of
scholars and scholarly writings etc. interpreting the first two. The Qur'an itself
in verse 24:31 prescribes injunctions for women in the manner of dress in the
following words:"And tell believing women that they should lower their

15
 glances, guard their private parts, and not display their charms beyond what [it
is acceptable] to reveal; they should let their headscarves fall to cover their
necklines and not reveal their charms except to their husbands, their fathers, "

ISSUE 3. Whether a Muhlikh can assert its claim to do so under right to manage its
own religious affairs?

 Article 26(b) of the Constitution of Indistan reads: Subject to public order, morality
and health, every religious denomination or any section thereof shall have the right
(b) to manage its own affairs in matters of religion. The ground of ‘public order’ on
which the impugned order of the college is founded is un-understandableand
unsubstantiated; this expression is construed with reference to ‘public disorder’ and
therefore, the State action is bad vide COMMISSIONER OF POLICE vs. C. ANITA.
If hijab disrupts public order, State should take action against those responsible for
such disruption and not ban the wearing of hijab. How could covering of head in
anyway disrupt public order or go against morality and is a threat to health? Such a
duty is cast on the State in view of a positive duty vide GULAM ABBAS vs. STATE
OF UTTAR PRADESH, INDIBILY CREATIVE PVT. LTD vs. STATE OF WEST
BENGAL. In addition such a right cannot be curtailed based on the actions of the
disrupters, i.e., the ‘hecklers don’t get the veto’ vide TERMINIELLO vs. CHICAGO,
BROWN vs. LOUISIANA, TINKER vs. DES MOINES, which view is affirmed by
the Apex Court in UNION OF INDIA vs. K.M.SHANKARAPPA. This duty is made
more onerous because of positive secularism.

ISSUE 4. Whether the direction issued by the College Development Community is

violative of provisions enshrined in the Constitution of Indistan?

4.1 Direction being violative of Article 19

 In NALSA v Union of India while dealing with several constitutional issues regarding
the transgender community, the court makes an important observation that people
express their gender-identity through their mannerisms and clothes, and such
expression is a fundamental right guaranteed under Article 19(1)(a) of the constitution
(para 62).

16
 The court refered to the US cases City of Chicago v. Wilson and Doe v. Yunits as
examples wherein courts stated that expression of gender-identity through choice of
clothes is a key aspect of a person’s fundamental right to expression and autonomy.
Having cited these cases the court concluded that: “Principles referred to above
clearly indicate that the freedom of expression guaranteed under Article 19(1)(a)
includes the freedom to express one’s chosen gender identity through varied ways and
means by way of expression, speech, mannerism, clothing etc”.

 Through the NALSA judgement, the court broadened the scope of Article 19(1)(a) to
include non-verbal speech as well. Therefore wearing of Hijab is not just an
expression of religeon but could be perceived as an expression of ones identity in
several ways.Through the NALSA judgement, the court broadened the scope of Article
19(1)(a) to include non-verbal speech as well.
 It is submitted that the right to freedom of apparel and appearances has been
specifically recognised as falling under the ambit of the right to privacy' in K.S.
Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1 in the judgment of
Justice Chelameswar. It was specifically held,
"373. ... The choice of appearance and apparel are also aspects of the right to privacy.
The freedom of certain groups of subjects to determine their appearance and apparel
(such as keeping long hair and wearing a turban) are protected not as a part of the
right to privacy but as a part of their religious belief. Such a freedom need not
necessarily be based on religious beliefs falling under Article 25."

 In Doe v. Yunits [2000 WL 33162199 (Mass Super Ct 2000)] , the Superior Court of
Massachusetts, upheld the right of a person to wear school dress that matches her
gender identity as part of protected speech and expression and observed as follows:
"by dressing in clothing and accessories traditionally associated with the female
gender, she is expressing her identification with the gender. In addition, plaintiff's
ability to express herself and her gender identity through dress is important for her
health and well being. Therefore, plaintiff's expression is not merely a personal
preference but a necessary symbol of her identity".
 The principles referred to above clearly indicate that the freedom of expression
guaranteed under Article 19(1)(a) includes the freedom to express one's chosen

17
 gender identity through varied ways and means by way of expression, speech,
mannerism, clothing, etc."
 The counsel humbly submits that in  Tinker v Des Moines Independent School
District that the black armbands was constitutionally protected speech. The majority
observed that school students had not surrendered any of their fundamental rights by
deciding to enrol in a school, observing that:
Because it was a free speech issue, the court stated that the only time limits on
symbolic speech/activity approximating to speech may be imposed is where such
behaviour produced an immediate disruption and disrupted the peace and order of the
school. The majority reasoned that black armbands alone could not constitute a
disruption to any sort of public order, and hence the fines faced by students were
unlawful because they violated their right to free expression. The majority reached
their conclusion by observing:
“These petitioners merely went about their ordained rounds in school. Their
deviation consisted only in wearing on their sleeve a band of black cloth, not more
than two inches wide. They wore it to exhibit their disapproval of the Vietnam
hostilities and their advocacy of a truce, to make their views known, and, by their
example, to influence others to adopt them. They neither interrupted school activities
nor sought to intrude in the school affairs or the lives of others. They caused
discussion outside of the classrooms, but no interference with work and no disorder.
In the circumstances, our Constitution does not permit officials of the State to deny
their form of expression.”

 Similarly it can be observed that the issue pertained in the present case regarding
expression religeon on educational capus and banning students from wearing hijab
inside college premises is in violation of rights prescribed in Article 19 of the
Constitution. 

4.2 Violation of Article 15

 Proscribing hijab in the educational institutions apart from offending women’s

autonomy is violative of Article 14 inasmuch as the same amounts to ‘gender–based’

18
 discrimination which Article 15 does not permit. It also violates right to education
since entry of students with hijab to the institution is interdicted. The government and
the schools should promote plurality, not uniformity or homogeneity but
heterogeneity in all aspects of lives as opposed to conformity and homogeneity
consistent with the constitutional spirit of diversity and inclusiveness vide
VALSAMMA PAUL (MRS) vs. COCHIN UNIVERSITY30, SOCIETY FOR
UNAIDED PRIVATE SCHOOLS OF RAJASTHAN vs. UNION OF INDIA31 and
NAVTEJ SINGH JOHAR vs. UNION OF INDIA32.
 Discrimination against the Petitioners herein is violative of Article 15, for restricting
the entry of the Petitioners herein in a government school only on the ground of
religion. Article 15 specifically envisages that the State shall not discriminate on
grounds of religion. Article 15(2) further envisages that no citizen shall on grounds of
religion be subject to any restriction with regard to access of public shops. In Indian
Medical Assn. v. Union of India, (2011) 7 SCC 179, the Hon'ble Supreme Court
specifically held that educational Institutions are covered under the ambit of 'shops in
Article 15(2). It was held,

"187. Inasmuch as education, pursuant to T.M.A. Pai [(2002) 8 SCC 481], is an

occupation under sub-clause (g) of clause (1) of Article 19, and it is a service that is
offered for a fee that takes care of all the expenses of the educational institution in
rendering that service, plus a reasonable surplus, and is offered to all those amongst
the general public, who are otherwise qualified, then such educational institutions
would also be subject to the discipline of clause (2) of Article 15. In this regard, the
purport of the above exposition of clause (2) of Article 15, when read in the context of
egalitarian jurisprudence inherent in Articles 14, 15, 16 and Article 38, and read with
our national aspirations of establishing a society in which equality of status and
opportunity, and justice, social, economic and political, would imply that the private
sector which offer such facilities ought not to be conducting their affairs in a manner
which promote existing discriminations and disadvantages.”

4.3 Violation of Article 21

19
 It is submitted that the right of dignified living under Article 21 of the Constitution
has been violated by the Respondents herein. The Petitioner believe that it is an
essential part of their faith and conscience that they must wear a hijab. Their belief
which, in their opinion, is an essential practice of their personal faith and conscience
cannot be a ground for the State to deny education.

 It is submitted that the right of dignified living under Article 21 of the Constitution
has been violated by the Respondents herein. The Petitioner believe that it is an
essential part of their faith and conscience that they must wear a hijab. Their belief
which, in their opinion, is an essential practice of their personal faith and conscience
cannot be a ground for the State to deny education.

 It is submitted that it is incumbent on the State to promote "harmony and the spirit of
common brotherhood amongst all the people of India transcending religious,
linguistic and regional or sectional diversities;" under Article 51-A(e) of the
Constitution. This duty of both the citizens and the State is essential to the
constitutional guarantee of 'Fraternity'.

 Also in the case- The Ahmedabad St. Xaviers College ... vs State Of Gujarat & Anr
on 26 April, 1974 the Supreme Court said: “The reason is that the fundamental right is
vested in a plurality of persons is a, unit. that is in a community of persons necessarily
fluctuating. Can the present Members of a minority community barter away or
surrender the right under the article so as to bind its future members as a unit ? The
fundamental right is for the living generation. By a voluntary act of affiliation of an
educational institution established and administered by a religious minority the past
members of. the community cannot surrender the right of the future members of that
community. The future members of the community do not derive the right under art.
30(1) by succession or inheritance.”
 Furthermore the counsel submits that the state should adhere to the doctrine of
proportionality and restrictive test The action of the State and the schools suffers from
the violation of ‘doctrine of proportionality’ inasmuch as in taking the extreme step of
banning the hijab within the campus.  This action of the authority is highly arbitrary.
To test whether a legislation is arbitrary or not the the tests of arbitrary action is
20
 applicable to executive action do not necessarily apply to delegated legislation. In
order to strike down a delegated legislation as arbitrary it has to be established that
there is manifest arbitrariness. In order to be described as arbitrary, it must be shown
that it was not reasonable and manifestly arbitrary. The expression “arbitrarily”
means: in an unreasonable manner, as fixed or done capriciously or at pleasure,
without adequate determining principle, not founded in the nature of things, non-
rational, not done or acting according to reason or judgment, depending on the will
alone.” 

 Article 18 of ICCPR( Indistan has ratified) reads:

1. Everyone shall have the right to freedom of thought, conscience and religion. This
right shall include freedom to have or to adopt a religion or belief of his choice, and
freedom, either individually or in community with others and in public or private, to
manifest his religion or belief in worship observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to
adopt a religion or belief of his choice.
3. Freedom to manifest one's religion or beliefs may be subject only to such
limitations as are prescribed by law and are necessary to protect public safety, order,
health, or morals or the fundamental rights and freedoms of others. 

Article 13 of ICESCR(India is a signatory) reads:

“Education shall be directed to the full development of the human personality and the
sense of its dignity, and shall strengthen the respect for human rights and fundamental
freedoms. They further agree that education shall enable all persons to participate
effectively in a free society, promote understanding, tolerance and friendship among
all nations and all racial, ethnic or religious groups, and further the activities of the
United Nations for the maintenance of peace.”

4.4 Violation of Article 25

 It is submitted that the right of the Petitioner herein to attend an educational institution
of her choice while professing her religion has been emphatically recognized by the
Hon'ble Supreme Court in Bijoe Emmanuel v. State of Kerala (1986) 3 SCC 615. The
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Hon'ble Supreme Court specifically recognised that even though the religious beliefs
of the Jehovah's Witnesses may appear strange or even bizarre", they are entitled to
protection under Article 25(1) and 19(1)(a) of the Constitution. The Hon'ble Supreme
Court held,

"We see that the right to freedom of conscience and freely to profess, practise and
propagate religion guaranteed by Art. 25 is subject to (1) public order, morality and
health; (2) other provisions of Part III of the Constitution; (3) any law (a) regulating
or restricting any economic, financial, political or other secular activity which may be
associated with religious practice; or (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. Thus while on the one hand, Art. 25(1) itself expressly
subjects the right guaranteed by it to public order, morality and health and to the other
provisions of Part III, on the other hand, the State is also given the liberty to make a
law to regulate or restrict any economic, financial, political or other secular activity
which may be associated with religious practise and to provide for social welfare and
reform, even if such regulation, restriction or provision affects the right guaranteed by
Art. 25(1). Therefore, whenever the Fundamental Right to freedom of conscience and
to profess, practise and propagate religion is invoked, the act complained of as
offending the Fundamental Right must be examined to discover whether such act is to
protect public order, morality and health, whether it is to give effect to the other
provisions of Part III of the Constitution or whether it is authorised by a law made to
regulate or restrict any economic, financial, political or secular activity which may be
associated with religious practice or to provide for social welfare and reform. It is the
duty and function of the Court so to do. Here again as mentioned in connection with
Art. 19(2) to (6), it must be a law having the force of a statute and not a mere
executive or a departmental instruction.We are satisfied, in the present case, that the
expulsion of the three children from the school for the reason that because of their
conscientiously held religious faith, they do not join the singing of the national
anthem in the morning assembly though they do stand up respectfully when the
anthem is sung, is a violation of their fundamental right to freedom of conscience and
freely to profess, practice and propagate religion."

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 It is submitted that the Explanation I to Article 25 of the Constitution similarly
guarantees the right of Sikh persons to carry the kirpan. The Petitioners herein claim a
similar right to wear the hijab, which is part of their religion and conscience. It is
submitted that the Respondents herein cannot deny this right under any of the grounds
of restrictions permissible under Article 25 of the Constitution.

 It is submitted that there cannot be any prohibition under the Constitution or any laws
made thereunder to curb any person from wearing any particular attire pursuance of
the right to belief, faith and conscience, as long as it is in keeping with morality,
public order and health.

 The preamble of the Constitution of India makes a solemn assurance of LIBERTY of

thought, expression, belief, faith and worship to the people. It contains the ideals and
aspirations which the constitution makers intended to be realised by it's enacting
provisions. Article 21 and Article 25 of the Constitution is a further protection of the
right to personal liberty and the right to freedom of conscience and free profession,
practice and propagation of religion as a fundamental right not just all citizens but to
all persons. The fundamental rights moranteed under Articles 21 and 25 are no doubt
subject to reasonable restriction and such reasonable restriction are as provided in
these provisions. Article 25 which specifically secures to all persons the right to free
profession, practice and propagation of religion makes it subject only to public order,
morality and health.

 Finally being violative of the major fundamental rights, the order of the college
violates Article 14 of the Muhlikh girl students. No intelligible differentia can be
made out . Also, the order is arbitrary in the sense it violates the basic freedoms of the
students.

Prayer

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Wherefore in light of the issues raised, arguments advanced and authorities cited, it is humbly
prayed that this Hon’ble Supreme Court of Indistan be pleased to declare/accept

1. The special leave petition filed by the petitioner is maintainable.

2. Wearing of Hijab/headscarves by Muhlikh women constitutes the essential religious
practice in Islam.
3. A Muhlikh can assert its claim to wear Hijab under right to manage its own religious
affairs.
4. The direction issued by the College Development Community is violative of
provisions enshrined in the Constitution of Indistan.

And pass such an order that this Hon’ble Court may deem fit in the interests of justice, equity
and good conscience.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

COUNSEL FOR THE PETITIONER

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