S, S, JAIN SUBODH LAW COLLEGE

IN THE HON’BLE SUPREME COURT OF INDISTAN

SPECIAL LEAVE PETITION FILED UNDER ARTICLE 136 OF THE

CONSTITUTION OF INDISTAN

IN THE MATTER OF: -

ZIKRA AND ORS. ………………………………...………………………… PETITIONERS

Versus

STATE OF CARNATIC …………………………………………..……….. RESPONDENT

MOST RESPECTFULLY SUBMITTED BEFORE THE HON’BLE SUPREME COURT

OF INDISTAN

MEMORIAL ON BEHALF OF PETITIONERS

DRAWN AND FILED BY THE COUNSELS FOR THE PETITIONERS

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TABLE OF CONTENTS

TABLE OF CONTENTS ...............................................................................................................

INDEX OF AUTHORITIES ..........................................................................................................

LIST OF ABBREVIATIONS ...........................................................................................................

STATEMENT OF JURISDICTION.................................................................................................

STATEMENT OF FACTS ...............................................................................................................

ISSUES RAISED ........................................................................................................

SUMMARY OF ARGUMENTS ......................................................................................................

ARGUMENTS ADVANCED ..........................................................................................................

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

2 Whether wearing of hijabs/headscarves by Salafi women constitutes the essential
religious practise?
3 Whether a Salafi can assert its claim to do so under the right to manage its own religious
affairs?
4 Whether the direction issued by the College Development Community is violative of
provisions enshrined in the Constitution of Indistan?

PRAYER FOR RELIEF ...........................................................................

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INDEX OF AUTHORITIES
❖ CASES REFERRED

❖ Foreign Law Cases

1 Tinker v. Des Moines Independent Community School District (United States ) 393
U.S. 503
❖ Supreme Court Cases

1. NALSA v. Union of India, Writ Petition (civil) No. 604 of 2013

2. Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Thirtha
Swamiyar of Shri Shirur Mutt, 1954 SCR 1005
3. Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853
4. Tilkayat Shri Govindlaji Maharj v. State of Rajasthan, 1963 AIR 1638
5. National Legal Services Authority v. Union of India &Ors, WRIT PETITION (CIVIL)
NO.400, SC 2012
6. Shri Dwarka Nath Tewari v. Stae of Bihar , AIR 1959 SC 249
❖ High Court Cases
1. Hasan Ali v. Mansoor Ali, (1948) 50 BOMLR 389
2. Nadha Raheem v. CBSE, WP(C).No. 21696 of 2015 Ker
3. Amnah Bint Basheer v. CBSE , WP(C).No. 6813 of 2016 (B) Ker

❖ STATUTES REFERRED

1. The Constitution of Indistan, 1949.

2. The Carnatic Education Act, 1984.
3. The Universal Declaration of Human Rights, 1948.

❖ BOOKS REFERRED

1. J.N. Pandey, Constitution of India, Central Law Agency, Allahabad, Fifty Fifth ed.
(2018).
2. Prof. M.P. Jain, Indian Constitutional Law, Lexis Nexis, Butterworths Wadhwa
Publication, Nagpur, Sixth ed. (2011).

3. Prohphet Mohmmad, The Holy Quran , IMA PUBLISHERS PVT LTD, New Delhi , Second
ed.(2020).

4. V.N. Shukla, Constitution of India, Eastern Book Company, Lucknow, Eleventh ed.
(2008).

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❖ WEBSITES REFERRED

1. Advocatekhoj.com
2. Casemine.com
3. Constiutionofindia.net
4. Egazatte.nic.in
5. Indiankanoon.org
6. Latestlaws.com
7. Lawctopus.com
8. Legalservicesindia.com
9. Legislative.gov.in
10. Lexisnexis.com
11. Manupatra.in
12. Quran.com
13. Scconline.com

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LIST OF ABBREVIATION

ABBREVIATION EXPANSIONS

AIR All India Reporter

ALT Alternative Law Journal

Anr. Another

Art. Article

& And

MLA Member of Legislative Assembly

Const. Constitution

HC HIGH COURT

Hon’ble Honorable

No. Number

Ors. Others

SC Supreme Court

SCC Supreme Court Cases

Sec. Section

UOI Union of India

v. Versus

W.P. Writ Petition

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STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Indistan has jurisdiction to hear this Petition under Article
1361 of the Constitution of Indistan, 1949.

The PETITIONERS most humbly submits before the Jurisdiction of the present court
and accepts that it has power and authority to preside over the present case.

1
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

• Kudupi’s Women PU(Pre-University) an educational institute in Carnatic State

of Union of Indistan is mainly administratively controlled by its College
Development Community in which several
• On December 2021, Kudupi women’s PU(Pre-University) college of Carnatic
state of Union of Indistan gave an arbitrary direction to ban the wearing of hijab
within the college premises.
• Subsequently, students belonging to Salafi community were prevented from the
college to attend classes on the sole ground of wearing hijabs.
• In result of this, Salafi students insisted they be allowed to exercise hijab as they
are not wearing the different colour or on a different uniform, rather they wear
headscarves of the same color on the same uniform.
• Salafi 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 organizations
having political power in carnatic state that such unreasonable restrictions were
being made targeting the minorities.
• Swraikha college of excellence in the state of carnatic passed the similar
directive to ban indie girls from wearing nose rings inside the college premises.
• Indie girls raised there concern that it was a part if long standing tradition in
south indistan.
• Aggrieved by such arbitrary, unreasonable directives various petitions were
filed by students against college authority in carnatic high court.
• The carnatic high court without observing merits if the case passed the
impugned order favouring the respondents.
• That the aggrieved petitioners have now approached this honorable court
through special leave to petition.

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ISSUES RAISED

1. WHETHER THE SPECIAL LEAVE PETITION FILED BY THE

PETITIONERS IS MAINTAINABLE?

2. WHETHER WEARING OF HIJABS/HEADSCARVES BY SALAFI

WOMEN CONSTITUTES THE ESSENTIAL RELIGIOUS PRACTISE?

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

RIGHT TO MANAGE ITS OWN RELIGIOUS AFFAIRS?

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

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

The present special leave to appeal before this Hon’ble Court pertains to adjudging of substantial
question of law which is of paramount public importance. The Learned High Court of Carnatic
erred in adjudging the case and pronounced its judgment without looking into the merits of the
case. The present Special leave to petition falls under the jurisdiction of the Hon’ble Supreme
Court under Art-136. It is submitted before the Hon’ble Supreme Court of Indistan to grant this
special leave to petition.

2. Whether wearing of hijabs/headscarves by Salafi women constitutes the essential religious

practice?

The wearing of hijab is an essential religious practice and the practice finds its origin in the
supreme text of Salafism, the Holy Quran in which women are clearly instructed to veil in front
of strangers and such practice has been for long time been followed by the Salafi women.
Various surveys have showed that the practice holds great importance for people following
Salafism, hence it is to be considered as essential religious practice for Salafism.
3. Whether a Salafi can assert its claim to do so under the right to manage its own religious
affairs?
Salafi has to be construed as religious denomination and be given the right to manage their own
religious affairs. Salafi people satisfy all the criteria for being ascertained a religious
denomination. Hence they must be governed under the ambit of Art.26 and must be given
freedom to manage their religious affairs.
4. Whether the direction issued by the College Development Community is
violative of provisions enshrined in the Constitution of Indistan?
Dress and attire are a part of speech and expression that institution cannot compel to remove
according to Art.19(1)(a). It is violative of Art.14 and Art.15 which prohibits discrimination on
the basis of religion. The above direction of the College Development Community is violative of
Art. 21 right to Life and personal dignity .The order by the College authority stands violative of
the provisions enshrined in the Constitution of Indistan .Therefore it is submitted before this
Hon’ble Supreme Court to set aside and declare the direction given by the College Development
Community .

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Advanced Arguments

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

The present special leave to appeal before this Hon’ble Court pertains to adjudging of substantial
question of law which is of paramount public importance. The present Special leave to petition
falls under the jurisdiction of the Hon’ble Supreme Court under Art-136 .

The Kudupi’s Women College action of giving direction to ban hijab in college campus dated
December 2021, has been targeted specifically to harm Salafi community. Further when the
petitioners approached the Learned High Court of Carnatic, the Learned Court failed to properly
asses the petitioners’ grievance and passed the impugned judgment in favor of the respondent
citing that “uniform code must be followed by all the students”. That though the operative part of
the judgment given by the Learned High Court seems to be facially religious-neutral, it targets a
particular Salafi community in effect. The Learned High Court’s order in Zikra and Ors. v.
State of Carnatic dated 11/01/2023 violates the Salafi student’s constitutional rights, right to
dress , right to religion, right to liberty and right to equality .

The College authority’s direction is in abridgement of the Salafi student’s right to education as
they are not allowed to attend their classes nor are they allowed to be in the College premises.
Because of the immoral quests of some political groups to downgrade them, Salafi religion
students have been deprived of education.

The petitioner have been subjected to gross injustice by the Learned High Court’s order .The
petitioner in this petition approaches this Hon’ble Court for seeking relief from the
discriminatory diktat of banning wearing of Hijab by the College Authority .

The decision whether students are to be allowed to wear hijab in College premise is to be decided
on the sole criteria that whether wearing hijab is an essential religious practice so as to protect it
under Article 25 . The issue needs to be dealt in keeping mind to the various details and relevant
portions which the High Court has not dealt with. The petitioner seek this Hon’ble Supreme
Court to adjudge upon the matter.

In NALSA v Union of India2, the Supreme Court considered style of clothing to be guaranteed
under Art-19 is held that “people express their gender-identity through their mannerisms and

2
Writ Petition (civil) No. 604 of 2013.

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clothes, and such expression is a fundamental right guaranteed under Article 19(1)(a) of the
constitution.”

The wearing of hijab/headscarves by the Salafi students doesn’t violates any of the provisions of
public order ,morality, decency and the direction issued by the College Authority to ban hijab do
not put any reasonable restrictions in the interest of sovereignty , integrity and security of the
nation or friendly relations with foreign states . As the impugned order by the College Authority
do not come under the ambit of reasonable restrictions as defined in Art-19 it must be set aside
by this Hon’ble Court.

A similar dress code issue was dealt by United States Supreme Court where school children in
Des Moines, Lowa ,United States were punished for black armbands as it was argued the
armbands violated the school uniform code. The case reached the Supreme Court of the United
States (SCOTUS) wherein the court laid down its famous judgment of Tinker v. Des Moines
Independent Community School District3 . The majority observed that school students had not
surrendered any of their fundamental rights by deciding to enrol in a school. They recognized the
student’s fundamental right to dress.

The case not only affects the petitioner only but all the students of the country of Union of
Indistan. It raises a major question that whether students can assert their right of managing own
religious affair in schools or educational institutions premises by wearing their religious clothes
or ornaments.

The petitioner suffering gross injustice have sought this Hon’ble Court’s help for seeking justice
as Krishna Iyer, J in P.S.R. Sadhanantham v. Arunachalam 4, pointed out , “when
extraordinary power under Article 136 chases injustice, sky is the limit. When, the Supreme
Court exercises power under Art 136, it not only acts as a “court of law” but also as a “court of
equity” and such power is exercised for doing full and complete justice.”

Thus, it is humbly submitted before the Hon’ble Supreme Court to consider this special leave to
petition.

3
393 U.S. 503.
4
1980 3 SCC 141.

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2. Whether wearing of hijabs/headscarves by Salafi women constitutes the essential

religious practise?

It is contended that wearing of hijab is an essential religious practice, and that the action of the
Kudupi Women Pre-University is discriminatory of religion and sex.

In Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Thirtha

Swamiyar of Shri Shirur Mutt5, what constitutes the essential part of a religion is primarily to
be ascertained with reference to the doctrines of that religion itself.”

It is to be pertinent here that Courts have relied upon the religious scriptures and religious
doctrines in ascertaining whether a practice constitutes essential religious practice or not . In
Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Thirtha
Swamiyar of Shri Shirur Mutt6, the Apex Court laid the importance of religious doctrines in
order to ascertain what constitutes as an essential religious practice. In Sardar Syedna Taher
Saifuddin Saheb v. State of Bombay7, the Court emphasized that the Essential Religious
Practices are to be determined according to the texts and tenets of the religion.

The following provisions of Holy Quran confirms the practice of wearing Hijab.

Verses 31 Chapter 24 of Holy Quran 8

“And enjoin believing women to cast down their looks and guard their
private parts and not reveal their adornment except that which is revealed of itself, and
to draw their veils over their bosoms, and not to reveal their adornment save to their
husbands, or their fathers………”

Surah 33 Chapter 59

“O Prophet! Tell thy wives and daughters, and the believing women, that they should
cast their outer garments over their persons (when abroad): that is most convenient, that
they should be known (as such) and not molested.”

5
1954 SCR 1005.
6
Supra 2.
7
AIR 1962 SC 853.
8
Verse 31 Chapter 24 Holy Quaran.

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An analysis of the Quranic injunctions and the Hadiths would show that it is a farz
(duty) to cover the head and wear the long sleeved dress except face part and exposing
the body otherwise is forbidden (haram). When farz(duty) is violated by any action
opposite to farz(duty) that action becomes forbidden (haram). Hence the practice of
wearing of headscarves/hijab is based upon the principles of Holy Quran .

The Apex Court had held in Tilkayat Shri Govindlaji Maharj v State of Rajasthan9 , that “a
practice is considered essential to a religion if it is essential to the community following the
religion.” According to a survey by Times of India more than 80% of Muslim Women wear head
coverings while being outside their homes10. The survey shows the community’s adherence of
the principle of having head coverings while being outside their home .

Thus it is submitted to this Hon’ble Supreme Court that wearing of headscarves/hijab be

considered as essential religious practice for Salafism .

9
1963 AIR 1638.
10
Hijab row: 5 charts show how prevalent religious clothing is ?, Feb 22, 2022, Times of India.

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

Salafi women are religious denomination under Art.26 and be granted power to do so under the
right to manage their own religious affairs.

The Supreme Court has laid down guidelines in the case of Indian Young Lawyers Association
v. The State Of Kerala11, for ascertaining a group as religious denomination , they must have a
common faith ,common organization and are designated by a distinct name, the Salfi satisfy all
the three conditions as all the Salafi people have a common faith , they have a common
organization and they are designated by a common name of Salafi. Hence, as Salafi people
qualify all the conditions for being a religious denomination they must be construed as religious
denomination.

Dress has been referred in the context of expression of self. It is submitted that Salafi women
wearing hijab is a symbolic expression of their identity to the public as a woman who follows
Salafism. The wearing of hijab does not cause any issue of public disorder or disturbance.
Moreover, an arbitrary, unsubstantiated and illogical constraint imposed on the appearance of
Salafism women and their choice of self-presentment is constitutionally impermissible and an
explicit violation of Article 25 and Art.26 guaranteed in the Constitution.

Art.26 has been subjected to state’s power in making laws in favour of public order, morality and
health. The above action of the College Development Community doesn’t circumscribe in any of
the provisions. It’s nowhere to be seen that wearing of hijab violates public order or morality or
health.

Salafi women are practising hijab from a long time and there were no objection of any
government agency regarding this practice. Salafi women enjoy this right to practise wearing
hijab or headscarves under article 26 of the constitution. This practise can only be restricted in
case of gross violence of any of the restrictive provisions mentioned in article 26. But in the
present case, there was no as such gross violence of any of the provisions and the directive issued
was arbitrary and violative of article 26 of the constitution.

In Hasan Ali v. Mansoor Ali12 the Bombay High Court held that Articles 25 and Article 26 not
only prevents doctrines or beliefs of religion but also the acts done in pursuance of religion. It
thus guarantees ceremonies, modes of worship, rituals, observances, etc. which are an integral
part of religion. What is the essential or integral part of a religion has to be determined in the
light of the doctrines and practices that are regarded by the community as a part of their religion
and also must be included in them.

11
WRIT PETITION (CIVIL) NO. 373 OF 2006.
12
(1948) 50 BOMLR 389.

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In Bijoe Emmanuel v. State of Kerala13 The Supreme Court held that the action of the
headmistress of expelling the children from school for not singing the national anthem was
violative of their freedom of religion. The fundamental rights guaranteed under Article 19(1)(a)
and Article 25(1) has been infringed. It further held that there is no provision of law which
compels or obligates anyone to sing the national anthem, it is also not disrespectful if a person
respectfully stands but does not sing the national anthem. The College Authorities’ action to not
permit hijab wearing girls in educational institutes is also of the same nature as of the school
mentioned in the above case . Hence, it is argued before the Hon’ble Supreme Court to consider
the above mentioned case before adjudging on the matter.

In Shayara Bano 14 case ,Right to manage its own religious affair under Art. 26 was given
interpretation as that it includes religious practices, rituals, observances, ceremonies, mode and
manner of worship, etc., regarded as the essential and integral part of the religion.

Thus it is humbly submitted before the Hon’ble Supreme Court to recognize the right of Salafi
people to wear hijab under their right to manage religious affairs.

13
1987 AIR 748.
14
Shayara Bano v. Union Of India & Ors , Writ Petition (C) No. 118 of 2016.

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

violative of provisions enshrined in the Constitution of Indistan?

The action of College Authority of issuing directive to prohibit Salafi girls wearing hijab from
entering the College premises is clearly violative of Art.14 , Art.15 , Art. 19(1)(a) and Art. 21 of
the constitution of Indistan .

Under Art. 14 of the Indistan Constitution, it is mentioned that the State should give equal
protection of the law to every person and in the present case issuance of such directive is in
violation of Art.14 . Also, Art.15 states that no person shall be discriminated by the State on the
basis of caste , sex, race , religion place of birth . In the present case, Salafi girls wearing hijab
were prohibited from entering the college premises on the sole basis of religion which is
absolutely discriminatory in nature.

Dress and attire are a part of speech and expression that institution cannot compel to remove the
same, as per Art. 19(1)(a). The order by the College authority stands violative of the provisions
enshrined in the Constitution of Indistan .

In multi-cultural societies, students should be taught to acknowledge, accept and respect

diversities in the society. The impugned order is exclusionary and destructive of tolerance and
diversity in the classroom. The classroom is expected to be uniform but not homogenous.

That the right to dress inheres in the right to freedom of speech and expression, right to identity,
and the right to dignity under Article 21 of the Constitution of India. Restriction on dress, even in
the context of uniform, must have a rational nexus with the object sought to be achieved.

It is asserted that the direction issued in December 2021 is violative of Art.21 Right to life as
every person has been guaranteed personal liberty and right to dignity which can only be
abridged by procedure established by law . And the interpretation of law given under Art. 21 has
been given by the Supreme Court in Delhi Airtech Pvt. Ltd. V State of Uttar Pradesh 15 , as the
the law which is just, reasonable, fair. The direction issued by the College Authority of banning
wearing of hijab in college premises doesn’t have any kind of satisfactory reason with it, nor it is
fair as only a specific community has been targeted and discriminated against.

15
AIR 2012 SC 573.

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In National Legal Services Authority v. Union of India & Ors16. , it was held that the rights
available to the students are the right to dress, free speech and expression not affecting public
order or morality and the right of privacy, citing judgments in.

Moreover the Carnatic Education Act, 1983 7(2)(g)(v) specifies that the State government can
specify through medium of curricula instruction to the students “to promote harmony and the
spirit of common brotherhood amongst all the people of India transcending religious, linguistic
and regional or sectional diversities to renounce practices derogatory to the dignity of women”
and under the Section 133 of the above law, the government has the authority to issue directions
to schools and colleges in this regard.. It is to be noted that the State government has been
designated the power of issuing direction to prescribe student uniform, but the impugned order
was issued by the College Authority. The College Authority does not poses the requisite
authority to pass directions in such matter. Hence as the impugned act was passed arbitrarily and
without any authority, it is liable to be quashed and set aside .

The above direction given by the Kudupi Women’s Pre University was in contravention of the
judgment of the Kerala High Court in Nadha Raheem v. CBSE17 and Amnah Bint Basheer v.
CBSE18, where the High Court recognized the student’s right to wear hijab and pronounced its
judgment in consonance of not violating it. The Court adopted a harmonious way
accommodating the competing interests of both parties without there being any conflict or
repugnancy.

The College Authority doesn’t have any valid reason for banning hijab as it cannot be established
that security, unity of the nation or public order would be harmed nor it is observed to violate
morality or decency principles under Art.19(2) of the constitution .

Thus it is humbly submitted before this Hon’ble Supreme Court that the directive issued by the
College Development Community is clearly violative of the provisions Art. 14, Art.15
,Art.19(1)(a) and Art.21 of the Constitution of Indistan. The directive of the College Authority is
liable to be set aside and declared null and void .

16
, WRIT PETITION (CIVIL) NO.400, SC 2012.
17 WP(C).No. 21696 of 2015 Ker.
18 WP(C).No. 6813 of 2016 (B) Ker.

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PRAYER FOR RELIEF

Wherefore, in the light of the issues raised hereinabove, arguments advanced and
authorities relied upon, the counsel for the Petitioners humbly pray before this Hon’ble
Supreme Court of Indistan to kindly adjudge and be pleased to:

A. Accept this Special Leave Petition filled by the Petitioners .

B. Declare wearing of Hijab as an Essential Religious Practice .
C. Recognize wearing of Hijab by Salafi women under the right to manage their
own religious affairs.
D. Declare the direction given by the College Development Community as null
and void.
E. And pass any other order, direction or relief that it may deem fit in the best
interests of justice, equity and good conscience.

For this act of kindness, the Petitioners shall be duty bound and forever
Pray.

Respectfully Submitted by

Counsels for the Petitioners

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