lOMoAR cPSD| 22954543

Before The Hon’ble Supreme Court of India

Under Constitution of India

Rihina ...................................... Claimant

V
Mahatma Gandhi Memorial (MGM) College…..Respondent 1

Submitted to the Hon’ble Supreme Court of India

Memorial Filed on the Behalf of the Respondent

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Table of content

List of Abbreviations

List of References

 Statutes
 Cases
 Articles, books, commentaries, dictionaries, and journals

Statement of Jurisdiction

Synopsis of Facts

Statement of Issues

1. Whether wearing of Hijab is an essential religious practice of Islam religion?

2. Whether disallowing wearing of hijab within the college violates freedom of
religion of the Muslim girls?
3. Whether uniform dress code violates the petitioners' fundamental rights under
Articles 14,19(1)(a),21and 25 of the Constitution?
4. Whether the Government Order and the school circular violates secularism, which is
a basic structure of the Constitution?

Summary of Argument

Argument

Prayer
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 List of abbreviations

A.I.R. All India Reporter

App. Appendix
Art. Article
Ch. Chapter
cl. Clause
Col. Column
Const. Constitution of India
C. P. C. Code of Civil Procedure, 1908
Cr. P.C. Code of Criminal Procedure, 1973
e.g., For example,
Excep. Exception
Expln. Explanation
Fig. Figure
Hdg. Heading
i.e. That is
Ill. Illustration
I.P.C. Indian Penal Code
No. Number
Or. Order
para Paragraph
Prov. Provision
Pt. part
r. Rule
s. Section
Sch. Schedule
ss. Sections
T.P. Act Transfer of Property Act, 1882
U.P. Uttar Pradesh
V. Versus
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List of References and Cases

Statutes

 Constitution of India
 Criminal Procedure Code
 Indian Penal Code

Cases

a) Fatima Hussain Syed v/s Bharat Education Society and Ors. (AIR 2003 Bom 75)
b) Commr, HRE v. L.T. Swamiar
c) COMMISSIONER HINDU RELIGIOUS ENDOWMENTS MADRAS vs. SRI
LAKSHMINDRA THIRTHA SWAMIAR OF SRI SHIRUR MUTT
d) DURGAH COMMITTEE, AJMER vs. SYED HUSSAIN ALI
e) M. ISMAIL FARUQUI vs. UNION OF INDALI
f) A.S. NARAYANA DEEKSHITULU vs. STATE OF ANDHRA PRADESH
g) JAVED vs. STATE OF HARYANA
h) COMMISSIONER OF POLICE vs. ACHARYA
JAGADISHWARANANDA AVADHUTA
i) AJMAL KHAN vs. THE ELECTION COMMISSION
j) SHARAYA BANO
k) INDIAN YOUNG LAWYERS ASSOCIATION.
l) MILLER vs. GILLS
m) CHRISTMAS vs. EL RENO BOARD OF EDUCATION
n) ISMAIL FARUQUI
o) Mohammed Zubair Corporal ... vs Union of India & Ors

Articles, books, commentaries, dictionaries, and journals

 Constitution of India
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Statement of Jurisdiction

Article 136: Special leave to appeal by the Supreme Court.

(1) Article 136 deals with the special leave to appeal by

the Supreme court. It means that the Supreme Court

is authorised to grant in its discretion special leave to

appeal from any judgement in any matter passed 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

relatingto the Armed Forces.

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Synopsis of Facts

Overview

a) India is a “Sovereign Socialist Secular Democratic Republic” country andis a union of

28 constituent States along with 9 Union Territories in the tip of South Asia, with 138
crores population marking it as world’s second most populous nation. It is famous
worldwide for its diversity in culture, language, religion, whereby a robust
Constitution of India has been meticulously safeguarding the interest of each
community as it aims to treat everyone at parity and promote fraternity among all.
b) There is a history of communal clashes between the two groups, particularly at the
time of the division of the country. Since independence there has been a huge
proliferation of communal violence in India. There have also been reports by
leading international organisations regarding the insecurity suffered by religious
minorities in Indistan. In 2019, the Forum for International Religious Freedom
[Hereinafter FIRF] placed India at 111th rank in its Annual Religious Tolerance
Index [ARTI].

Occurrence of events

1) The hill district of Ananteshwar lying amidst the Arabian Sea and western Ghats in
the State of Devsthal, an educational institution by the name of Mahatma Gandhi
Memorial (MGM) College a government aided college in Ananteshwar College gave
a direction in 25th Jan 2022 to notifying that the students shall follow a uniform dress
code.
2) The girls appealed to the College authorities that wearing hijab is an inevitable part
of their religion and belief. and therefore they must not be deprived of their
constitutional right to practice and profess their religion. Moreover, they pleaded
that as their parents would not allow them to go out without wearing hijab, the hijab
ban would ultimately result in deprival of their right to education. They also
undertook to wear hijab of the same navy-blue colour as in the dress code. However,
this was brushed aside by the school authorities who insisted that hijab is not in tune
with the prescribed dress code for students. Meanwhile a Government Order was
issued by the State of Devsthal, declaring that hijab is not an essential part of Islam
religion.
3) Aggrieved by the action of the college, Rihana, a Muslim girl student filed a write
petition in the Supreme Court contenting that the 'hijab ban" in college and denial of
entry to college for girls who wear hijab, violates their fundamental right to equality
and freedom of religion. The Progressive Students Union filed a petition seeking
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removal of the dress code as it violates their personal liberty, privacy and freedom of
expression guaranteed under the Constitution.
4) The State Government contended that they have not interfered with the freedom of
religion at all, and that "the very purpose of uniform and dress code is to maintain
equality among the students and maintain dignity, decorum and discipline in the
institution." Further, Mahatma Gandhi Memorial (MGM) College stated that
prescribing uniform in the college is in furtherance of avoiding display of religious
symbols within the institution, and thereby in tune with the secular principles.
5) Rihana, a Muslim girl student filed a writ petition in the Supreme Court contenting
that the 'hijab ban" in college and denial of entry to college for girls who wear hijab,
violates their fundamental right to equality and freedom of religion. The Progressive
Students Union filed a petition seeking removal of the dress code as it violates their
personal liberty, privacy and freedom of expression guaranteed under the
Constitution.
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Statement of Issues

1. Whether wearing of Hijab is an essential religious practice of Islam religion?

2. Whether disallowing wearing of hijab within the college violates freedom of

religion of the Muslim girls?

3. Whether uniform dress code violates the petitioners' fundamental rights under

Articles 14,19(1)(a),21and 25 of the Constitution?

4. Whether the Government Order and the school circular violates secularism,

which is a basic structure of the Constitution?

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Summary of Pleadings

1. Whether wearing of Hijab is an essential religious practice of Islam religion?

Wearing of Hijab in Islam religion is not an essential religious practice before the

hon’bleSupreme court as there is no form of substantial question of law is involved

or gross injusticehas been done. The order passed by the High Court is fully

constitutional declaring that uniform code must be followed by all the students

regardless of the community and their identity as stated in Rihina v. State of

Devsthal.

2. Whether disallowing wearing of hijab within the college violates freedom of

religion of the Muslim girls?

The prescription of dress code for the students that too within the four walls of

the class room as distinguished from rest of the school premises does not offend

constitutionally protected category of rights, when they are ‘religion-neutral’ and

‘universally applicable’ to all the students. The wearing of hijabs/headscarves by

Muslim women does not constitutes the essentialreligious practice wearing of

hijab/headscarves by Muslim women is not an essential religious practice. As for

an act to be essential religious practice it should follow several indicia that have

been laid down by the Supreme Court in various cases precedent to the current

case.

The act of covering of their head by Muslim women is not mandatory as it is not even

mentioned in the Holy Quran. Something that is recommendatory in the Holy Quran

cannotbe change into a mandatory religious practice.

3. Whether uniform dress code violates the petitioners' fundamental rights under
Articles 14, 19(1)(a),21and 25 of the Constitution?

The prescription of dress code for the students that too within the four walls of the

class room as distinguished from rest of the school premises does not offend
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constitutionally protected category of rights, when they are ‘religion-neutral’ and

‘universally applicable’ to all the students.

Muslim cannot assert their right to manage its own religious affairs during institution

hoursas schools have their own set of discipline and uniform which each student must

follow.

On this recent matter it can be hardly argued that Hijab being a matter of attire can

be justifiably treated as an essential religious practice of Min-E-Dilahi. Moreover,

there is no proof in the Holy Scriptures, that wearing of Hijab is a religious

requirement and that it is apart of “Essential Religious Practice” in Min-E-Dilahi.

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4. Whether the Government Order and the school circular violates secularism,
which is a basic structure of the Constitution?

Direction issued by the Government and School is not violate of any provisions

enshrined in the constitution of India as the institution has the right to set up a dress

code for their institution and when the students joined the institution, the college

Mahatma Gandhi Memorial (MGM) College, they consented to follow all the norms of

the institution. It is also true that our Constitution protects the rights of school children

too against unreasonable regulations. However, the prescription of dress code for the

students that too within the four walls of the class room as distinguished from rest of

the school premises doesnot offend constitutionally protected category of rights, when

they are ‘religion-neutral’ and ‘universally applicable’ to all the students.

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Detailed Pleadings

1. Whether wearing of Hijab is an essential religious practice of Islam religion?

It is sincerely submitted before the court that the Special Leave Petition filed by the
wearing of Hijab is not an essential religious practice of Islam religion before the hon’ble
Supreme court as there is no formof substantial question of law is involved or gross
injustice has been done. The order passed by the High Court is fully constitutional
declaring that uniform code must be followed by all the students regardless of the
community and their identity as stated in Rihana v. State of Devsthal.
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2. Whether disallowing wearing of hijab within the college violates freedom of religion
of the Muslim girls?

It is humbly submitted before the hon’ble court that the wearing of hijabs/headscarvesby
Muhlikh women does not constitutes the essential religious practice
1. INDIAN YOUNG LAWYERS ASSOCIATION surveyed the development of law
relating to essential religious practice and the extent of its constitutional patronage
consistent with the long-standing view.
2. Ordinarily, a religious practice in order to be called an ‘essential religious practice’
should have the following indicia:
(i) Not every activity associated with the religion is essential to
such religion. Practice should be fundamental to religion and it
should be from the time immemorial.
(ii) Foundation of the practice must precede the religion itself or
should be co-founded at the origin of the religion.
(iii) Such practice must form the cornerstone of religion itself. If
that practice is not observed or followed, it would result in the
change of religion itself and,
(iv) Such practice must be binding nature of the religion itself and
it must be compelling. That a practice claimed to be essential
to the religion has been carried on since time immemorial or is
grounded in religious texts per se does not lend to it the
constitutional protection unless it passes the test of essentiality
as is adjudged by the Courts in their role as the guardians of
the Constitution.
3. One of the surahs of the Holy Quran “Surah -Al -Noor” only talks about guarding
one's modesty and lowering their gaze.
4. Paragraph 30 of the “Surah-al-Noor” says that believing men should lower their gaze
and guard their modesty.
5. Similarly, paragraph 31 of the “Surah-al-Noor” says that believing women should
lower their gaze and guard their modesty, and veil their bosoms in front of any man
that is not their husband.
6. The surah does not mention anything specifically making it mandatory for the women
to cover their heads by wearing a hijab or headscarf; and if wearing of
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hijab/headscarves is not mandatory for Muhlikh men then why should it be mandatory
for Muhlikh women.
7. Thus, covering of head (wearing hijab) is not an essential religious practice as it is not
even mentioned in the religious scriptures of Muhlikh’s and is not guaranteed under
Article 25 of the Constitution of Indistan.
8. Wearing hijab or head scarf is not a part of ‘essential religious practice’ of Min-e-
dilahi faith; the Holy Quran does not contain any such injunctions; the Apex Court
has laid down the principles for determining what is an ‘essential religious practice’
vide
a) COMMISSIONER HINDU RELIGIOUS ENDOWMENTS MADRAS vs. SRI
LAKSHMINDRA THIRTHA SWAMIAR OF SRI SHIRUR MUTT
b) COMMISSIONER OF POLICE vs. ACHARYA
JAGADISHWARANANDA AVADHUTA
c) AJMAL KHAN vs. THE ELECTION COMMISSION
d) SHARAYA BANO
e) INDIAN YOUNG LAWYERS ASSOCIATION.
9. Wearing hijab at the most may be a ‘cultural’ practice which has nothing to do with
religion. Culture and religion are different from each other.
10. Based on this in ‘Resham and another vs. State of Karnataka and others’ the
Karnataka High Court held that wearing of hijab or headgear women is not in
essential religious practice. The Court further said that “Quran does not mandate
wearing of hijab or head gear”. Upholding the decision of banning hijab in
educational institutions.
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3. Whether uniform dress code violates the petitioners' fundamental rights under
Articles 14,19(1)(a),21and 25 of the Constitution?
It is sincerely summitted before the hon’ble court that:

1) No Muslim cannot assert their right to manage its own religious affairs during
institution hours as schools have their own set of discipline and uniform which
eachstudent must follow.
2) On this recent matter it can be hardly argued that Hijab being a matter of attire
canbe justifiably treated as an essential religious practice of Min-E-Dilahi.
Moreover, there is no proof in the Holy Scriptures, that wearing of Hijab is a religious
requirement and that it is a part of “Essential Religious Practice” in Min-E-Dilahi.
3) Claimants should produce requisite material to prove the same.
4) It is also to bring to the notice of the learned court that claimant or petitioner have
absolutely no material placed on record to prima facie to show that wearing of
Hijabis a part of an essential religious practice in Min-E-Dilahi and that this
practice has been prevalent since ancient times. It is also seen that the wearing of
Hijab has no record in past and that it is been worn since beginning.
5) I would like to bring to the notice of the learned court that practice of dress code has
been prevalent since KENDRIYA VIDYALAYAS. But Hijab was never seen in that
time
6) Also, if such proposal of allowing hijab in university will be allowed even if it is of
same color. it will divide the girl student’s category into two parts i.e.
Those who wear uniform with Hijab and others would be the students who
wearuniform without Hijab. Thus, this would lead to the establishment of a
sense of “Social-separateness” which is not desirable in students.
7) This will also put an end to the main motive of uniform i.e., to bring the feel
ofuniformity /togetherness irrespective of their religion, caste, creed, and
faith. Thus, Hijab should not be allowed during university hours.

4. Whether the Government Order and the school circular violates secularism, which
is a basic structure of the Constitution?

It is sincerly submitted before the hon’ble court that the direction issued by the college
development community is not violative of any provisions enshrined in the constitution of
Indistan as the institution has the right to set up a dress code for their institution and when
thestudents joined the institution, the college Mahatma Gandhi Memorial (MGM)
College, they consented to follow all the norms of the institution.

In all advanced countries, there has been a unanimous legal opinion that, in accordance
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with the general principle, school authorities may make reasonable regulations governing
the conduct of students under their control, as well as prescribe the particular dress to be
worn bystudents or make reasonable regulations regarding their personal appearance.

In MILLER vs. GILLS, a rule that the students of an agricultural high school should wear a
khaki uniform when in attendance at the class and whilst visiting public places within 5
milesof the school is not ultra vires, unreasonable, and void.

Similarly, in CHRISTMAS vs. EL RENO BOARD OF EDUCATION, A rule barring

malestudents from participating in a graduation certificate ceremony if their hair was
covering their eyes, ears, or collars was upheld, as long as the rule had no influence on
the student's actual graduation from high school and no educational rights were denied.

It is also true that our Constitution protects the rights of school children too against
unreasonable regulations. However, the prescription of dress code for the students that too
within the four walls of the class room as distinguished from rest of the school premises
doesnot offend constitutionally protected category of rights, when they are ‘religion-
neutral’ and ‘universally applicable’ to all the students.

The school regulations prescribing dress code for all the students as one homogenous
class,serve constitutional secularism. It is relevant to quote the observations of Chief
Justice Venkatachalaiah, in ISMAIL FARUQUI, supra:

“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… In a
pluralist, secular polity law is perhaps the greatest integrating force. Secularism is more
than a passive…It is a positive concept of equal treatment of all religions. What is
material is that itis a constitutional goal and a Basic Feature of the Constitution.”

‘A safe and disciplined learning environment is the first requirement of a good school.
Young people who are safe and secure. In response to growing levels of violence in our
schools, many parents, teachers, and school officials have come to see school uniforms as
one positive and creative way to reduce discipline problems and increase school safety.’
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Prayer

For the foregoing reasons, questions presented, arguments advanced, and authorities cited,
The Respondent respectfully requests the Court to adjudge and declare that:

1. Quash the Special Leave Petition filed by the appellant/claimant.

2. Upheld that the direction issued by the college development community of college
Mahatma Gandhi Memorial (MGM) College does not violate any provisions of
the constitution for the women of the Muslim community and the Muslim
community as a whole.
3. Declare that hijab is not an essential practice for the women of Muslim
community and the university norms must be followed.

Counsels for the Respondents