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)

MEMORIAL ON BEHALF OF THE RESPONDENT

1
 TABLE OF CONTENTS

LIST OF ABBREVIATIONS…………………………………………………………..….… 2
LIST OF REFERENCES ………………………………………………………………......... 3
STATEMENT OF JURISDICTION…………………………………………………….…… 6
STATEMENT OF FACTS……………………………………………………………..…….. 7
ISSUES RAISED ……….…………………………………………………………............... 9
SUMMARY OF ARGUMENTS……………………………………………………..…..……. 10
ARGUMENTS ADVANCED ……………………………………………………………… 12
1. WHETHER THE SPECIAL LEAVE PETITION FILED IS MAINTAINABLE?............ 12
1.1. The locus-standi of the petitioner
1.2. Substantial question of law is not involved and Gross miscarriage of justice has not
been done

2. WHETHER WEARING OF HIJABS/HEADSCARVES BY MULIKH WOMEN

CONSTITUTES THE ESSENTIAL RELIGIOUS PRACTICE?....................................... 14
2.1. Test for ascertainment of Essential Religious Practice
2.2. Wearing of Hijabs by Mulikh women doesn‟t form an essential part of religious
practice

3. WHETHER A MUHLIKH CAN ASSERT ITS CLAIM TO DO SO UNDER THE

RIGHT TO MANAGE ITS OWN RELIGIOUS AFFAIRS?............................................. 17
3.1. The contentions of the Mulikh Women do not fall under the right to manage their
own affairs.
3.2. The direction issued by the educational institutions is in furtherance of upholding
the basic feature of Secularism
4. WHETHER THE DIRECTION ISSUES BY THE COLLEGE DEVELOPMENT
COMMUNITY IS VIOLATIVE OF PROVISIONS ENSHRINED IN THE 19
CONSTITUTION OF INDISTAN?....................................................................................
4.1. There has been no violation of principles of equality of the Mulikh students under
Art. 14 of the Constitution of Indistan
4.2. The direction only puts a reasonable restriction on the right of freedom of speech
and expression guaranteed under Art. 19 of the Constitution of India
4.3. The direction doesn‟t violate the fundamental right to life and liberty guaranteed
under Art. 21 of the Constitution of India
4.4. The direction doesn‟t violate the fundamental right to life and liberty guaranteed
under Art. 21 of the Constitution of India
PRAYER………………………………………………………………………………………. 23

1
 LIST OF ABBREVIATIONS

Sl. No. Abbreviation Full form

1. v. Versus
2. ¶ Paragraph
3. & And
4. SC Supreme Court
5. AIR All India Report
6. SCC Supreme Court Cases
7. Art. Article
8. S. Section
9. u/a Under article
10. Anr. Another
11. Hon‟ble Honourable
12. SLP Special Leave Petition
13. UoI Union of India
14. Ltd. Limited
15. Co. Corporation
16. HC High Court
17. W.P. Writ Petition
18. Ors. Others
19. FIRF Forum of International Religious Forum
20. ARTI Annual Religious Tolerance Index
21. CDC College Development Committee
22. Govt. Government
23. CBSE Central Board of Secondary Education

2
 LIST OF REFERENCES

CASE LAWS
S.No Case Name Citation Referred
at page
1. M. Ismail Faruqui v. Union of India (1994) 4 SCC 360 12,18,22
2. N. Suriyakala v. A. Mohandoss (2007) 9 SCC 196 13
3. Baigana v. Dy. Collector of AIR 1978 SC 944. 13
Consolidation
4. Narpat Singh v. Jaipur Development (2002) 4 SCC 666. 13
Authority
5. Pritam Singh v. The State AIR 1950 SC 169 13
6. Benu Balakrishna Iyer v. Ariya M. AIR 1965 SC 195 13
Ramaswami Iyer
7. State of Assam v. Barga Dewani (1970) 3 SCC 236 13
8. Bihar Legal Support Society v. Chief AIR 1987 SC 38 13
Justice of India
9. Masud Alam v. Commissioner of MANU/WB/0002/1956 14
Police
10. Dr. Noorjehan Safia Niaz and 1 Anr. MANU/MH/3188/2018 14
V. State of Maharashtra and Ors
11. Seshammal v. State of Tamilnadu MANU/SC/0631/1972 15
12. N. Adithyan v Travancore Dewaswom (2002) 8 SCC 106 15
Board
13. Commissioner of Police & Ors v. MANU/SC/0218/2004 15
Acharya Jagdishwarananda
14. The Commissioner, Hindu Religious MANU/SC/0136/1954 15
Endowments, Madras v. Sri
Lakshmindra Thirtha Swamiar of Sri
Shirur Mutt
15. Sardar Syedna Taher Saifuddin Saheb MANU/SC/0072/1962. 15
v. State of Bombay
16. A.S Narayana Deeshitulu v. State of MANU/SC/0455/1996 15

3
 A.P
17. Young Lawyers Association v. The 2018 (8) SCJ 609 16
State of Kerala
18. Quareshi v. State of Bihar AIR 1958 SC 731 17
19. State of Gujarat v. Mirzapur Moti 2005 8 SCC 534 17
Kureshi
20. State of West Bengal v. Ashutosh AIR 1995 SC 464 17
21. Commr., H.R.E. v. Lakshmindra (1954) SCR 1005 (1022, 17
1024, 1025)

22. M.P Gopalakrishnan Nair v. State of AIR 2005 SC 3053 17

Kerala
23. Narayana v. State of A.P, AIR 1996 SC 17650 18
24. Cf. Mittal v. Union of India AIR 1983 SC 1 18
25. Saifuddin Sahebv. State of Bombay AIR 1962 SC 853 (864). 18
26. Employment Division v. Smith 494 U.S. 872 (1990). 18
27. Mohd. Usman v. State of A.P 1971 SCR 549 19
28. E. P. Royappa v. State of Tamil Nadu 1974 AIR 555 19
& Others
29. Asha Sharma v. Chandigard Admn (2011) 10 SCC 86 19
30. The Superintendent Central Prison, AIR 1960 SC 633 20
Fatehgarh v. Ram Manohar Lohia
31. Kamlakar Shankar Patil v. B.Akashi (1994) Cr.L.J. 1870 20
32. Papanasam Labour Union v. Madura AIR 1995 SC 2200 20
Coats Ltd
33. State of Gujarat v. Mirzapur Moti (2005) 8 SCC 534 20
Kureshi Kassab Jamat & Others
34. Ramji Patel & Others v. Nagrik (2000) 3 SCC 29 20
Upbhokta Marg Darshak Manch&
Others
35. A.K.Gopalan v. State of Madras AIR 1950 SC 27 21
36. Inderjith Barua v. Assam AIR 1983 Del 513 21
37. Dr. Vinod Narain vs State of U.P. And 1996 CriLJ 1309 21

4
 Ors
38. Naz Foundation v. Government of (2009) 111 DRJ 1 21
NCT and Others
39. Siddharam Satlingappa Metre v. State [(2001) 1 SCC 694 21
of Maharashtra and others

BOOKS REFERRED:
1. Arvind P Datar, COMMENTARY ON CONSTITUTION OF INDIA, Vol. 1 (2nd ed.
2010)
2. Abdullah Yusuf Ali, THE HOLY QUR‟AN (English translation of the meanings and
Commentary)
3. Barbaar Freyer Stowasser, WOMEN IN THE QURAN, TRADITIONS AND
INTERPRETATION (1994)
4. D.D. Basu, COMMENTARY ON THE CONSTITUTION OF INDIA, Vol. 3 (8th ed.
2009)
5. D.D. Basu, COMMENTARY ON THE CONSTITUTION OF INDIA, Vol. 5 (8th ed.
2009)
6. D.D. Basu, SHORTER CONSTITUTION OF INDIA, Vol. 1 (14th ed. 2013)
7. Jagdish Swarup, CONSTITUTION OF INDIA, Vol. 1 (3rd ed. 2013)
8. Jagdish Swarup, CONSTITUTION OF INDIA, Vol. 2 (3rd ed. 2013)
9. M.P. Jain, INDIAN CONSTITUTIONAL LAW, Vol. 1 (7th ed. 2018)

STATUTES REFERRED:

1. Constitution of India, 1950.

5
 STATEMENT OF JURISDICTION

The Respondents seek to contest the maintainability of the petition that has been filed by the
Petitioners before the Hon‟ble SC under Art. 136 enshrined in the Part V, Chapter IV of the
Constitution of Indistan. The provision read herein under:

Art. 136 of the Constitution of Indistan:

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

6
 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 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 ".

7
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.

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.

8
 ISSUES RAISED

ISSUE 1:
WHETHER THE SPECIAL LEAVE PETITION FILED IS MAINTAINABLE?

ISSUE 2:
WHETHER WEARING OF HIJABS/HEADSCARVES BY MULIKH WOMEN
CONSTITUTES THE ESSENTIAL RELIGIOUS PRACTICE?

ISSUE 3:
WHETHER A MUHLIKH CAN ASSERT ITS CLAIM TO DO SO UNDER THE RIGHT
TO MANAGE ITS OWN RELIGIOUS AFFAIRS?

ISSUE 4:
WHETHER THE DIRECTION ISSUES BY THE COLLEGE DEVELOPMENT
COMMUNITY IS VIOLATIVE OF PROVISIONS ENSHRINED IN THE CONSTITUTION
OF INDISTAN?

9
 SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER THE SPECIAL LEAVE PETITION FILED IS

MAINTAINABLE?

It is the humble contention of the Respondents that the SLP filed before this Hon‟ble Court is
in complete disregard of the due process of law and shall therefore be dismissed. The instant
matter fails to highlight any substantial question of law of public importance which seeks
judicial intervention of the highest court of law. Furthermore, the judgment of the Bhirataka
HC happens to be good in law and in furtherance of preserving the basic feature of secularism
enshrined in the Constitution and no miscarriage of justice has been observed in the same.

ISSUE 2: WHETHER WEARING OF HIJABS/HEADSCARVES BY MULIKH

WOMEN CONSTITUTES THE ESSENTIAL RELIGIOUS PRACTICE?

It is the humble contention of the Respondents that in order to ascertain whether

Hijabs/Headscarves by Mulikh women, the same shall be ascertained by the Court on the
basis of the conscience of the community and the tenets of the religion. The term Hijab does
not appear in the Quran and therefore cannot be contested as an essential religious practice.
Furthermore, the code of wearing Jilbāb was not absolute and thus the wearing of
Hijabs/headscarves by Mulikh women does not constitute an essential religious practice.

ISSUE 3: WHETHER A MUHLIKH CAN ASSERT ITS CLAIM TO DO SO UNDER

THE RIGHT TO MANAGE ITS OWN RELIGIOUS AFFAIRS?

It is the humble contention of the counsel that the Mulikh cannot assert its claim to do so
under the right to manage its own religious affairs since the right guaranteed under Art. 26(b)
is not absolute but subjected to reasonable restrictions. Furthermore, the directive issued by
the educational institutions for a uniform dress code is pursuit of achieving the Constitutional
goal of secularism and religious activities which are not integral to the religion are not
protected within the ambit of Art. 26(b).

10
ISSUE 4: WHETHER THE DIRECTION ISSUES BY THE COLLEGE
DEVELOPMENT COMMUNITY IS VIOLATIVE OF PROVISIONS ENSHRINED IN
THE CONSTITUTION OF INDISTAN?

It is the humble contention of the counsel that the directive issued by the CDC addressing the
uniform for students in educational institutions and restricting the Mulikh women to wear
Hijabs/Headscarves is not violative of any provisions guaranteed under Articles 14, 19, 21,
25 and 26 of the Constitution of Indistan. The Fundamental Rights guaranteed under these
Articles are subjected to reasonable restrictions which include laws for maintaining public
order. The impugned directive was in order to ensure homogeneity and equality in the
college premises and preserve the basic feature of Secularism enshrined in the Constitution.

11
 ARGUMENTS ADVANCED

ISSUE 1: WHETHER THE SPECIAL LEAVE PETITION FILED IS

MAINTAINABLE?
¶1. The counsel for the Respondent humbly submits that the present petition is not
maintainable as the petitioners have approached this Hon‟ble court in clear ignorance of the
due process of law. The instant matter does not involve any substantial question of law which
needs intervention of the highest court of law. The judgment passed by the Bhirataka HC
happens to be good in law and no miscarriage of justice has been observed in the same.

The above contention has been presented in a two-fold manner:

1.1 The locus-standi of the petitioner

¶2. In the instant matter, a bunch of petitions were filed in the Bhirataka HC concerning the
school/college code restricting the students from religious/cultural symbolic portrayal in the
premises of educational institutions. The Bhirataka HC, after hearing the matter at length
passed the order in favour of the educational institutions.

¶3. The provisions contained in Art. 136 of the Constitution provides the right to any person,
aggrieved by the judgement of any lower court or tribunal, to file a SLP. The petitioners had
approached the Bhirataka Court claiming that the directives issues by the CDC are in
violation of Art. 25 and 26 of the Constitution.

¶4. It is the humble contention of the Respondents that order of the CDC and the judgment of
the High Court conforming the same are good in law since the rights guaranteed to the
citizens under Art. 25 of the Constitution are not absolute in nature and are subjected to
reasonable restrictions and regulation by law subject to public order, morality and health.

¶5. Furthermore, the protection under Art. 25 and 26 is with respect to the religious practices
that form an essential part of the religion and does not extend to secular activities.1 It
therefore becomes pertinent to draw clear distinctions between the same. The cause of action
which brings the Petitioners before the Hon‟ble Court is the violation of their Fundamental
Rights guaranteed u/a 25 and 26 but such rights are not absolute and are subjected to
reasonable restrictions. Therefore, the Respondents humbly contend that the instant matter
fails to show any need of urgency and the grant for SLP is unwarranted.

1
M. Ismail Faruqui v. Union of India, (1994) 4 SCC 360

12
1.2 Substantial question of law is not involved and Gross miscarriage of justice has not been
done

¶6. The Respondents humbly contend that the SLP shall not be allowed since it does not
involve any substantial question of law of public importance that might require judicial
intervention of the highest court.

¶7. The Respondents submit that Art. 136 does not confer a Right of Appeal to the aggrieved
party rather confers discretionary power on the Apex Court which shall be exercised for
securing the ends of justice under exceptional circumstances.2

¶8. The rationale behind such wide powers of judicial intervention is even though legal flaws
may be electronically detected, judicial intervention is required in matters of manifest
injustice or where a substantial question of public importance is involved. 3 The power under
Art. 136 is an overriding power whereunder the court may generously step in to impart justice
and remedy injustice.4

¶9. In the instant matter, the judgement of the Bhirataka HC suffers from no legal infirmity.
The educational institutions are “qualified public places” and every public space has its own
dimensions. It is expected from the students to adhere to campus discipline and dress code
lawfully prescribed. Furthermore, the very object of the CDC in prescribing a uniform dress
code was neither to encroach upon the Fundamental Rights of the Mulikh women nor to
attack their religious sentiments. At the very least, the directive was in furtherance of
preserving homogeneity and the basic feature of secularism.

¶10. It a well-established principle of law that the Hon‟ble SC shall be obligated to use its
discretionary power under Art. 136, sparingly and only in exceptional cases where special
circumstances are shown to exist 5 like for instance the presence of substantial question of law
of public importance or where there is some glaring error leading to grave, blatant and
atrocious failure of justice is made out6

2
N. Suriyakala v. A. Mohandoss, (2007) 9 SCC 196
3
Baigana v. Dy. Collector of Consolidation, AIR 1978 SC 944.
4
Narpat Singh v. Jaipur Development Authority, (2002) 4 SCC 666.
5
Pritam Singh v. The State, AIR 1950 SC 169, Benu Balakrishna Iyer v. Ariya M. Ramaswami Iyer, AIR 1965
SC 195, State of Assam v. Barga Dewani, (1970) 3 SCC 236
6
Bihar Legal Support Society v. Chief Justice of India, AIR 1987 SC 38

13
¶11. The factual matrix fails to highlight any miscarriage of justice on the part of the High
Court. The very order passed was in order to uphold the basic feature of Secularism as
enshrined in the Constitution.

¶12. Therefore, in the light of the arguments advanced and the reliance provided therein, the
Respondents humbly contend that the petitioners have no cause of action to file the SLP and
this Hon‟ble Court shall dismiss the same without entering into the merits of the case.

ISSUE 2: WHETHER WEARING OF HIJABS/HEADSCARVES BY MULIKH

WOMEN CONSTITUTES THE ESSENTIAL RELIGIOUS PRACTICE

¶13. Art. 25 of the Constitution secures to every person, subject to reasonable restrictions, not
only the freedom of conscience but also the right to freely profess, practice and propagate
one‟s religion but such freedom is subject to public order, morality and health.

¶14. The respondents humbly submit the case of Masud Alam v. Commissioner of Police7
wherein it was observed by the Hon‟ble SC that "India is a secular State and under Art. 25 of
the Constitution, all persons are at liberty to freely practise their religion. During the
enjoyment of the right under Art. 25 a clear distinction must be drawn between religious faith
and belief and religious practices. The State only protects the religious faith and belief. If the
religious practices run counter to public order, morality or health, then the religious
practices must give way before the good of the people of the State as a whole".

¶15. It is the humble contention of the counsel that wearing of Hijabs/headscarves by Mulikh
women does not constitute the essential religious practice. The arguments for the same have
been presented in a two-fold manner:

2.1 Test for ascertainment of Essential Religious Practice.

¶16. The protection guaranteed under Art. 25(1) of the Constitution is with regard to the
essential religious practices and does not extend to the secular activities associated with the
religion. Certain practices even though regarded as religious, may have sprung from merely
superstitious beliefs and in that sense be only extraneous and unessential to religion and such
can be revoked and not protected under the Art..8

7
Masud Alam v. Commissioner of Police, MANU/WB/0002/1956
8
Dr. Noorjehan Safia Niaz and Anr. v. State of Maharashtra and Ors.

14
¶17. The very issue pertaining whether a particular religious practice happens to be an
essential and integral part of that very religion shall be determined by the court itself on the
basis of the conscience of the community and the tenets of the religion concerned to decide
whether a practice is religious and if so whether it is essential and integral part of the
religion9. It is pertinent to mention that the doctrine of a particular religion including
practices which are regarded by the community as part of the religion happen to be the
decisive factors in ascertain the same.10

¶18. The essential part of a religion refers to the core beliefs upon which a religion is founded
while essential practice refers to the practices which are fundamental in pursuance of a
religious belief. The test to determine whether a part or practice is essential to a religion is to
find out whether the nature of the religion will be changed without that part or practice11
and if the taking away of that part or practice could result in a fundamental change in the
character of that religion or in its belief, then such part could be treated as an essential or
integral part.12

¶19. The Respondents humbly submit the case of The Commissioner, Hindu Religious
Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 13, wherein
the Hon‟ble Court observed that "what constitutes the essential part of a religion is primarily
to be ascertained by the courts with reference to the doctrines of that religion itself. The
essential practice test clearly states that the practices integral to the faith are exempted from
state intervention, in order to determine whether a particular act constitutes an essential
religious function or not reliance needs to place on the doctrines and religious texts of that
particular religion".14

2.2 Wearing of Hijabs by Mulikh women doesn’t form an essential part of religious practice

¶20. The Respondents humbly submit the case of A.S Narayana Deeshitulu v. State of
A.P.15, wherein it was held by the Hon‟ble Supreme Court that “Essential or integral part of
religion to be ascertained from the doctrine of that religion itself according to its tenets,

9
Seshammal v. State of Tamilnadu, MANU/SC/0631/1972.
10
N. Adithyan v Travancore Dewaswom Board, (2002) 8 SCC 106.
11
Commissioner of Police & Ors v. Acharya Jagdishwarananda, MANU/SC/0218/2004.
12
1 ARVIND P DATAR, COMMENTARY ON THE CONSTITUTION OF INDIA 444-445 (Lexis Nexis
Butterworths Wadhwa Nagpur 2007)
13
MANU/SC/0136/1954
14
Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, MANU/SC/0072/1962.
15
MANU/SC/0455/1996

15
historical backgrounds and change in evolved process and only integral or essential part of
religion is protected."

¶21. Therefore, in order to ascertain whether the wearing of Hijabs forms an essential
religious practice of the Mulikh women, it is pertinent to analyse the tenets of the Islamic
religion. According to the Quranic injunctions, women are recommended to merely lower
their gaze and not conceal the face beneath the Hijab/headscarf. The very object such
prescription was to protect them from harm and molestation under the conditions that
existed at the time of prescribing of such code. Furthermore, hijab was worn by women in
ancient times to distinguish themselves from slave girls and therefore it can be stated that
wearing hijab/headscarf is not religion-specific.16

¶22. In Chapter 24 known as „The Light’ in verse 31 in Holy Quran, the command is such
that:

“31. And tell the believing women to lower their gaze and be modest, and to display of their
adornment only that which is apparent, and to draw their veils over their bosoms, and not to
reveal their adornment save to their own husbands or fathers or husbands' fathers, or their
sons or their husbands' sons, or their brothers or their brothers' sons or sisters' sons, or their
women, or their slaves, or male attendants who lack vigour, or children who know naught of
women's nakedness. And let them not stamp their feet so as to reveal what they hide of their
adornment. And turn unto Allah together, O believers, so that you may succeed."

¶23. The term Hijab, as such, does not appear in the Holy Quran and shall therefore cannot
be contested to be an integral part of the religion. The sura 31, verse 59 of the Quran
prescribes for Jilbāb, plural Jalābib: an outer garment; a long gown covering the whole body,
or a cloak covering the neck and bosom.” Furthermore, the rule was not absolute and if at all
could not be observed for any reason whatsoever, God is most merciful.17

¶24. The Respondents humbly contend that it is highly unlikely to reach the conclusion from
the Quranic injunctions that not wearing of Hijabs will attack the essence of Min-e-Dilahi.
The above sufficiently establishes the contentions of the Respondents that the wearing of
Hijabs/headscarves does not form an intrinsic part of the religion and is solely optional to the
women. The Respondents humbly submit the case of Young Lawyers Association v. The

16
Sara Slininger, Veiled Women: Hijab, Religion, and Cultural Practice, Historia, 2014.
17
Abdullah Yusuf Ali, „The Holy Quarn: Text, Translation, and Commentary‟, Goodwork books, footnote:
3765.

16
State of Kerala18, wherein the Hon‟ble Supreme court observed that while determining the
essentiality of a religious practice, it is necessary to consider whether the practise is
mandatory in nature and in case of such practise being optional19, then the practise cannot be
claimed to be „essential‟ to the religion. The very practice in order to get the protection of
Art. 25(1) must be essential, or mandatory as distinguished from optional20.

¶25. Therefore, in light of the arguments advanced and the reliance provided therein, the
Respondents humbly contend before this Hon‟ble Court that wearing of Hijabs by Mulikh
women doesn‟t form an essential part of religious practice.

ISSUE 3: WHETHER A MUHLIKH CAN ASSERT ITS CLAIM TO DO SO UNDER

THE RIGHT TO MANAGE ITS OWN RELIGIOUS AFFAIRS?

¶26. The provisions under Art. 26(b) ensure that a religious denomination or organisation
enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are
essential according to the tenets of the religion.

¶27. It is the humble contention of the Respondents that the Mulikh women cannot assert
their claim to continue with the practice of wearing Hijabs/headscarves in the college
premises under Art. 26(b). The arguments for the same have been presented in a two-fold
manner:

3.1 The contentions of the Mulikh Women do not fall under the right to manage their own
affairs.

¶28. The bare reading of Art. 26 highlights that its scope does not extend to all persons like
Art. 25 rather is confined to religious denominations but the rights guaranteed under the Art.
are also susceptible to the restrictions made in regard to public order, morality and health.

¶29. The word „denomination’ has been defined as a “collection of individuals classed
together under the same name; a religious sect or body having a common faith and
organisation and designed by a distinctive name.”21

18
2018 (8) SCJ 609
19
Quareshi v. State of Bihar, AIR 1958 SC 731, State of Gujarat v. Mirzapur Moti Kureshi, 2005 8 SCC 534
20
State of West Bengal v. Ashutosh, AIR 1995 SC 464.
21
Commr., H.R.E. v. Lakshmindra (1954) SCR 1005 (1022, 1024, 1025)

17
¶30. The Respondents contend that no right shall be created by Art. 26 to any religious
denomination which it never had.22 It is to be noted that the religion denomination enjoys
complete autonomy under Art. 26(b) is in „matters of religion‟ which are interpreted as
including rites and ceremonies which hare essential according to the tenets of the religion. It
can therefore be implied that the protection guaranteed under Art. 26(b) does not extend to
other ‘secular affairs’ of the denomination.23

¶31. In the instant matter, the practice of wearing Hijab/headscarves in educational

institutions is a mere secular activity and cannot be regarded as an essential religious practice
so as to seek protection under Art. 26(b).

3.2 The direction issued by the educational institutions is in furtherance of upholding the
basic feature of Secularism.

¶32. The Respondents humbly contend that the sole purpose of the directive issued by the
CDC prescribing a uniform dress code is to promote harmony and spirit of common
brotherhood transgressing the religious and sectional diversities.24 Furthermore, it will be
impossible to instil and cultivate the scientific temperament amongst the young minds which
is prescribed as a fundamental duty vide Art. 51A(h) of the Constitution, if practices such as
wearing of Hijab are considered to be essential part of the religion.

¶33. The directive issued is in furtherance of the basic feature of the Constitution. The
Respondents humbly submit the case of M. Ismail Faruqui v. Union of India25 wherein the
Hon‟ble Chief Justice Venkatachalaiah had observed that “The concept of secularism is one
facet of the right to equality woven as the central golden thread in the fabric depicting the
pattern of the scheme in our Constitution. It is a positive concept of equal treatment of all
religions. What is material is that it is a constitutional goal and a Basic Feature of the
Constitution.”

¶34. The factual matrix sufficiently establishes the fact that the ban on wearing
Hijabs/headscarves was in furtherance of ensuring uniform dress code for the students and
the direction issued by the CDC lacks any depraved inclination to disregard the rights of the
Mulikh women.
22
M.P Gopalakrishnan Nair v. State of Kerala, AIR 2005 SC 3053.
23
Narayana v. State of A.P, AIR 1996 SC 17650; See also Cf. Mittal v. Union of India, AIR 1983 SC 1;
Saifuddin Sahebv. State of Bombay, AIR 1962 SC 853 (864).
24
Employment Division v. Smith, 494 U.S. 872 (1990).
25
Supra, note 1

18
¶35. Therefore, in light of the arguments advanced and the reliance provided therein, the
Respondents humbly contend before this Hon‟ble Court that the Mulikh students cannot
claim to wear hijab/headscarf in the educational institutions and assert their right to manage
its own religious affairs.

ISSUE 4: WHETHER THE DIRECTION ISSUES BY THE COLLEGE

DEVELOPMENT COMMUNITY IS VIOLATIVE OF PROVISIONS ENSHRINED IN
THE CONSTITUTION OF INDISTAN?

¶36. The Fundamental Rights guaranteed under Art 25 and 26 are subjected to reasonable
restrictions on the grounds of public order, morality or health. In the instant matter, the
direction issued by the CDC addressing the uniform for students in educational institutions
and restricting the Mulikh women to wear Hijabs/Headscarves doesn‟t encroach any of the
Fundamental Rights enjoyed by the Mulikh Women guaranteed under Constitution of
Indistan.

4.1 There has been no violation of principles of equality of the Mulikh students under Art. 14
of the Constitution of Indistan

¶37. Art. 14 of the Constitution guarantees all the citizens equality before the law and equal
protection of law. It is well-established proposition of law that the purpose of Art. 14 is
defeated both by finding difference when there is none and also by making no difference
when there is one.26

¶38. The Respondents humbly submit the case of E. P. Royappa v. State of Tamil Nadu &
Others27 wherein it was observed that equality is antithetic to arbitrariness. Furthermore, if
the decision made is not substantiated by recording proper reasons to arrive at the very
conclusion, then such action might fall in the category of arbitrariness. 28

¶39. In the instant matter, the direction issued by the educational institutions prescribing for a
uniform dress code is not for depriving the rights enjoyed by the Mulikh women nor to attack
their religious sentiments. At the very least, the directive was to ensure homogeneity and
equality in the college premises and further the basic feature of Secularism enshrined in the
Constitution. It is further contended by the Respondents that the directive was not arbitrary
26
Mohd. Usman v. State of A.P., 1971 SCR 549.
27
E. P. Royappa v. State of Tamil Nadu & Others, 1974 AIR 555.
28
Asha Sharma v. Chandigard Admn., (2011) 10 SCC 86.

19
since the college authorities had explicitly provided sufficient cause for the issuing such
direction which was merely not to allow any symbolic display in educational institutions and
upheld uniformity and disciplinary beliefs of the place of learning.

4.2 The direction only puts a reasonable restriction on the right of freedom of speech and
expression guaranteed under Art. 19 of the Constitution of India

¶40. Art. 19 of the Constitution of India guarantees to every citizen the right to freedom of
speech and expression. The same can only be subjected to reasonable restriction based on
grounds that are exclusively dealt for in Clause 2 of Art. 19, which includes public order.

¶41. The Respondents humbly submit the case of The Superintendent Central Prison,
Fatehgarh v. Ram Manohar Lohia,29 wherein it was observed by the Hon‟ble Supreme
Court that a situation of public order refers to the absence of disorder. In the instant matter,
the direction issued by the College Authorities proscribing the wearing of Hijab was in order
to ensure homogeneity and promote the sentiments of brotherhood. It is further contended
that the allowing of vehement display of religious beliefs in educational institutions not only
attacks the institution of secularism but also raises serious concerns about inter-religion
conflicts.

¶42. Thus, the decision by the College authorities was made keeping in view the history of
communal classes between the Matendus and the Mulikhs and the same shall be construed to
be in furtherance of preserving public order which happens to be the basic need for an
organised society where the citizens can carry on with their normal activities peacefully.30

¶43. The Respondents humbly submit that every right is subjected to reasonable restrictions
imposed by the legislature in the larger public interest. Therefore, it becomes necessary to
31
examine whether such restrictions are made to secure the interests of the society at large.
Also, the courts are conferred with the obligation to zealously guard the fundamental
rights of the citizens but in case of such rights clashing with the larger interest of the
country, the latter shall prevail in the interest of the community or the general public. 32

¶44. It is therefore contented that the claim of the petitioners stating that the impugned
direction is in violation of their right to expression is completely unfounded.

29
The Superintendent Central Prison, Fatehgarh v. Ram Manohar Lohia, AIR 1960 SC 633
30
Kamlakar Shankar Patil v. B.Akashi, (1994) Cr.L.J. 1870
31
Papanasam Labour Union v. Madura Coats Ltd., AIR 1995 SC 2200
32
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat & Others, (2005) 8 SCC 534. See also Ramji Patel &
Others v. Nagrik Upbhokta Marg Darshak Manch& Others, (2000) 3 SCC 29

20
4.3 The direction doesn’t violate the fundamental right to life and liberty guaranteed under
Art. 21 of the Constitution of India

¶45. Life bereft of liberty would be without honour and dignity and it would lose all
significance and meaning and the life itself would not be worth living. That is why "liberty"
is called the very quintessence of a civilized existence. Liberty has been defined by Laski,
John. E.E.D and Justice Khanna. From these definitions it is clear that the phrase `personal
liberty' is very wide and includes all possible rights which go to constitute personal liberty.
Liberty is the right of doing an act which law permits.

¶46. Art. 21 lays down that no person shall be deprived of his life or personal liberty, except
according to „procedure established by law‟33 and what constitutes just fair and reasonable
procedure shall be determined with respect to the facts and circumstances of the case. 34

¶47. The respondents humbly submit that the right to live with human dignity is a
fundamental right of every citizen for pursuit of happiness and excellence35 and it is
implied that the constitutional protection of dignity requires us to acknowledge the value and
36
worth of all individuals as members of our society. It is further contended that the ambit of
Art. 21 is wide enough to include the personal liberties of a person including how he dresses
and how he lives on with his life. Nevertheless, the same can be restricted by due procedure
of law.

¶48. In the instant matter, the direction though imposes check on the liberty of Mulikh
students, it was made keeping in view the importance of the society’s interest in
37
maintenance of peace, law and order. Schools/colleges are prime institutions which
promote homogeneity and scientific temperament among the students. It is therefore
contended that the decision banning the wearing of Hijab/headscarves is an attempt to break
the religious shackles and uphold the basic feature of secularism enshrined in the
Constitution.

4.4 The directive issued is not violative of the constitutional provision under Art. 25 and 26

33
A.K.Gopalan v. State of Madras, AIR 1950 SC 27.
34
Inderjith Barua v. Assam, AIR 1983 Del 513.
35
Dr. Vinod Narain vs State of U.P. And Ors, 1996 CriLJ 1309
36
Naz Foundation v. Government of NCT and Others, (2009) 111 DRJ 1
37
Siddharam Satlingappa Metre v. State of Maharashtra and others, (2001) 1 SCC 694.

21
¶49. The provisions under Art. 25 and 26 provide protection to the religious beliefs of the
citizens and the acts done in furtherance of the same. However, such protection is not
absolute and is susceptible to restrictions on the grounds of public order, morality and health.

¶50. The Respondents humbly submit the spectrum of activities which are protected within
the scope of Articles 25 and 26 need to be essential/integral to the very religion concerned. In
the aforementioned issues, it has been substantially established that the practice of wearing
hijab/headscarves doesn‟t constitute as an essential religious practice. The Holy Quaran in
Surah 24: 30-31 seeks it followers, both men and women, to wear modest dresses and
mentions nothing about wearing of the hijab. 38 Therefore, the claim of the petitioners seeking
protection under the said Articles shall be dismissed.

¶51. The Respondents in order to substantiate the above contention submit the case of M.
Ismail Faruqui v. Union of India39 wherein it was observed that protection under Art. 25
and 26 doesn‟t extend to activities which are not essential and integral part of practice of that
religion.

¶52. Therefore, in light of the arguments advanced and the reliance provided therein, the
Respondents humbly contend before this Hon‟ble Court that the directive issued by the CDC
is not violative of any provisions enshrined under the Constitution of Indistan.

38
Abdullah Yusuf Ali, „The Holy Quarn: Text, Translation, and Commentary‟, Goodwork books, footnote:
3760.,
39
Supra, note 1

22
 PRAYER

It is, therefore, prayed that in the light of the pleadings of the parties and arguments
advanced, the Hon‟ble Court may be graciously pleased;

(i) To hold that the SLP is not maintainable and accordingly dismiss the SLP.

(ii) To hold and declare that practice of wearing Hijabs / Headscarves by Mulikh
women is not a part and parcel of their essential religious practice and the
directives issued by the College Development Committee (CDC) banning
wearing of hijabs / headscarves within the premises of the college do not
violate the Constitutional provisions guaranteed under Articles 14, 19, 21,
25(1), and 26(b).
(iii) To confirm the judgment dated 11th January, 2022 of the Bhirataka High
Court vide Zikra and Ors. v. State of Bhirataka;
(iv) And, issue such other directions as the Hon‟ble Court may deem fit and
proper in the interest of justice, equity and good conscience.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

BY THE RESPONDENTS

23