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DIMPAL ASHOK SULARKAR.

[Link] 5th YEAR

ROLL NO. 27

K B C NORTH MAHARASHTRA UNIVERSITY

S.S. MANIYAR LAW COLLEGE, JALGAON INTER CLASS MOOT

COURT 2022-23

IN THE HON’BLE SUPREME COURT OF BHARATRASHTRA

Writ petition no- 21

In the matter of

RIHINA ------------------------------------------------------------------------------- PETITIONER

VS

UNION OF BHARATRASHTRA ------------------------------------------------------------ RESPONDENT

HUMBLE SUBMISSION BEFORE THE HON’BLE JUSTICE

OF

IN THE HON’BLE SUPREME COURT, BHARATRASHTRA.

MEMORIAL ON BEHALF OF RESPONDENT

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INDEX
Sr no. Title page no
1 List of abbreviation

2 List of reference and cases

3 Statement of jurisdiction

4 Statement of the fact

5 Statement of Issue

6 Summary of pleading

7 Argument advanced

8 Prayer

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============================================================

LIST OF ABBREVIATION
=============================================================

Art Article
Sc Supreme court
Hon’ble Honorable
& And
Ors Others
AIR All India Reporter
Sec Section
u/s Under section
vs verses

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=====================================================

INDEX OF AUTHORITIES
=====================================================

❖ Statutes
▪ Constitution of India Cases

❖ Cases
a) MILLER vs GILLS
b) M. AJMAL KHAN Vs THE ELECTIONS COMMISSION OF INDIA
c) COMMISSIONER OF POLICE vs ACHARYA JAGADISHW ARANANDA
AVADHUTA
d) INDIAN YOUNG LAWYERS ASSOCIATION
e) Resham and another vs State of Karnataka
f)Fatema Hussain sayyad vs Bharat education society and ors

❖ Web sources Statutes

1) [Link]
2) [Link]
3) [Link]
4) [Link]

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=====================================================

STATEMENT OF JURISDICTION
=====================================================
The petitioner has approached Hon’ble Court under the Art.32 of the Constitution
of india The counsels representing the respondent have endorsed their pleadings
before the hon’ble SC of Bharatrashtra under Art.32 of Constitution of India in
which the hon’ble SC has the jurisdiction. Article 32 of the Constitution gives an
extensive original jurisdiction to the Supreme Court in regard to enforcement of
Fundamental Rights. It is empowered to issue directions, orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari to enforce them. The present memorandum sets forth the facts,
contentions and arguments

32. Remedies for enforcement of rights conferred by this Part.—

(1) The right to move the Supreme Court by appropriate proceedings for theenforcement
of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders orwrits, including
writs in the nature of habeas corpus, mandamus, prohibition ,quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable bythe Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except asotherwise provided for
by this Constitution.

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STATEMENT OF FACT

1) Mahatma Gandhi Memorial college is located in the city of Ananteshwar

,Devsthal . That college has many student from various religion and cultural
background. In November 2021 one girl in college commited suicide leaving a
note that she was depressing from distinction between rich and poor student on the
basis of outfits

2) Considering this, on the 25 janaury 2022 college issued a circular mandating a

dress code for all student. The circular stated that male student must wear gray
trousers and white shirt while a female student must wear white kurta gray salwar
pant and gray waist coat , transgender student can choose between two dress code
as per their gender identity

3) After some muslim girl came with wearing the coloured hijab/head scarf in the
college, the college denied entry to the campus on the ground that hijab violated
their desss code.

4) This led to the statement of the protest from the muslim community of the
minded people, that hijab ban was deliberate attempt on the part of state
government to discriminate muslim and curb their freedom religion.

5) Then the girl appealed to the college authorities that wearing hijab is an
inevitable part of their religion and belief . Moreover they pleaded as their parent
would not allow them to go out without wearing hijab , the hijab ban would
ultimately result in deprival of their right of education. Meanwhile government
order was issued by State of Devsthal, declaring that hijb is not essential part of
Islam religion.

6) Aggrieved by the action of the college girl, Rihana , a muslim girl student filed
the a writ petition in the supreme court contenting that hijab ban in college violates
their fundamental right

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7) The Progressive Student Union filed a petition seeking removal of the dress
code as it violates their personal liberty, privacy,freedom of expression guaranteed
under the constititution

8) 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.

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STATEMENT OF ISSUE

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 MUSLIM
GIRL?

3) WHETHER UNIFORM DRESS CODE VIOLATES THE

PETITIONERS’FUNDAMENTAL RIGHTS UNDER ARTICLE
14,19(1),(A),21 AND 25 OF THE CONSTITUTION?

4) WHETHER THE GOVERNMENTAL ORDER AND THE SCHOOL

CIRCULAR VIOLATES SECULARISM WHICH IS A BASIC
STRUCTURE OF THE CONSTITUTION ?

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SUMMARY OF ISSUE

1) WEARING HIJAB IS NOT ESSENTIAL RELIGIOUS PRACTICE

RELIGION

Wearing hijab is not an essential practice of Islam religion. For this

purpose we have to find out whether the hijab is an essential practice of
Islam. There is many source of Islamic religion like Quran, Izma , Sunna,
kiyas. If we have to look the content of Holy Quran , there were no
mention that the use of hijab as an essential practice of Islamic
[Link] Quran nowhere state that Muslim women have to wear
hijab/headscarf.

2) THAT DISALLOWING WEARING OF HIJAB WITHIN THE

COLLEGE VIOLATES FREEDOM OF RELIGION OF MUSLIM
GIRL

Disallowing wearing the hijab in college premises would never be

encroachment freedom of religion of the Muslim girls. The Article
25 is not a absolute one. The constitution put some reasonable restrictions
on the article 25 of the constitution. The freedom of religions has been
subject to public order, morality and health of public at large, hence it
become be clear that disallowing the girls who wearing the hijab does not
violate the freedom of religion of Muslim girl.

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3) THAT UNIFORM DRESS CODE VIOLATES THE

PETITIONERS’ FUNDAMENTAL RIGHTS UNDER ARTICLE
14,19(1)(A),21 AND 25 OF THE CONSTITUTION

The uniform dress code does not violate any fundamental rights of the
petitioners. The article 14 promotes equality of law and equal protection
of law. Now if the uniform dress code seeks to purpose uniformity
amongst college premises. Under Art 19(1) (a) stated that freedom of
speech and expression. Now this freedom itself is not absolute one, as the
reasonable restriction have been put to Art 19. The Art 21 does not
violate in this present case. If the fact of present case are considered, it
can be seen that due to fashionable outfits one girl had committed
suicide. Now, college decided uniform dress code to all, then the chance
of happening again such incidence is quite less more equal to none.
Uniform dress code does not violate Art. 25. Art. 25 has been made
subjected to the public morality.

4. THAT THE GOVT. ORDER AND SCHOOL CIRCULAR DOES

NOT VIOLATE SECULARISM. WHICH IS THE BASIC
STRUCTURE OF THE CONSTITUTION.

The school circular does not violate Secularism which is the basic
structure of the Constitution. As per the earlier decision of this Hon’ble
Supreme Court Secularism means no religion for State, the state will treat
all religion equally. In the present case the Govt. Order seek to propose
equality among students then there is no question of it violating the basic
structure of Constitution.

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ARGUMENT IN ADVANCED

1. WEARING OF HIJAB IS NOT ESSENTIAL PRACTICE OF

ISLAMIC RELIGION.

It is humbly submitted before Hon’ble Supreme Court that wearing of

Hijab by Muslim girl is not essential religious practice.

This Hon’ble Court in various earlier decisions has laid down the
principles for determining as to what is an ‘essential religious practice’.
In case of INDIAN YOUNG LAWYERS ASSOCIATION V.
STATE OF KERELA surveyed that development of law relating to
essential religious practice and the extent of its constitutional patronage
consistent with the long-standing view.
 Ordinarily , a religious practice in order to be called an ‘essential religious
practice’ should have the following indicia:
1. 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.
2. Foundation of the practice must precede the religion itself or should
be cofounded with at the origin of the religion.
3. Such practice must form the cornerstone of the religion itself. If that
practice is not followed ,it would result in the change of religion itself
4. Such practice must be binding nature of the religion itself and it must
be compelling.

 The Surah in the Holy Quran 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 hijab is not mandatory for Muslim men then
why should it be mandatory for Muslim women.

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 Thus, covering of head is not an essential religious practice as it is not even

mentioned in the religious scriptures of Muslim and is not guaranteed under
Art. 25 of the Constitution of Bharatrashtra.

 Wearing hijab or headscarfs 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 SHIPUR
MUTT
B) COMMISSIONER OF POLICE VS. ACHARYA
JAGADISHWARANANDA AVADHUTA

 Wearing hijab at the most may be a ‘culture’ practice which has nothing to
do with religion. Culture and religion are different from each other.
Based on this in ‘Resham and another vs. State of Karnataka and others the
Karnataka High Court held that wearing of hijab or headscarf women is
not in essential religious practice. The court further said that ‘Quran does
not mandate wearing of hijab or headscarf’ Upholding the decision of
banning hijab in educational institutions.
Essential Religious Practices should associate with Constitutional values.
The person seeking refuge under the umbrella of Art. 25 of the
constitution has to demonstrate not only essential religious practice but
also its engagement with the constitutional values.

[Link] DISALLOWING WEARING OF HIJAB WITHIN

THE COLLEGE VIOLATES FREEDOM OF RELIGION OF
MUSLIM GIRLS.

It is most humbly submitted that disallowing wearing of hijab in the

college premises never be encroachment of the freedom of religion of
Muslim girl . The contention is supported on following ground-

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 Art. 25 of the Constitution run in the following word;

Freedom of conscience and free profession, practice and propagation of
religion.—
(1) Subject to public order, morality and health and to the other provisions of
this Part, all persons are equally entitled to freedom of conscience and the right freely to
profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent
the State from making any law—
(a) regulating or restricting any economic, financial, political or other secular
activity which may be associated with religious practice
(b)providing for social welfare and reform or the throwing open of Hindu religious
institutions of a public character to all cases & sections of Hindus
Exp. I : The wearing an carrying of Kirpans shall be deem to be included in
profession of the Sikh religion
Exp II: In sub clause(b) of clause 2 of the reference to Hindus shall be construed as
including a reference to persons professing the Sikh, Jain or Buddhist religion &
reference to Hindus religious institution shall be construed accordingly .

 The wording mention above in Art.25 of the constitution it become clear

that the freedom of religion is not absolute one. The state have been
imposed some reasonable restrictions on the freedom of religion for
maintain the public order, morality & health & to the other fundamental
rights.
In case of Shayara Bano (Supra) it has been observed by this Hon’ble
court that:
“ Art.25 gives to all persons the right to freely profess, practice &
propagate religion. The right, however, is not absolute. The opening
words of Art.25(1) make this right subject to public order, morality
and health. The restrictions also applies to the other provision of Part
III of the Constitution. This would mean that the right given to a
person under Art.25(1) can be curtailed or regulated if the exercise of
that right would violate others provision of part III of the constitution
or if the exercise thereof is not in consonance with public order
,morality and health and it cannot be violated by any person in
exercise of his freedom of conscience or his freedom to profess his
religion. For eg. A person cannot profess his religion in such manner
as to deny another religion or bring about dissatisfaction among
people.

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In case of Fatema Hussain Sayed vs Bharat Education Society and

Ors(AIR 2003), in similar case regarding dress code, when
controversy occurred at Kartik High School,Mumbai. The Bombay
high court appraised the matter and ruled that it was not violation of
Art 25 of the constitution for principal to prohibit the wearing of
head scarf in the school.

[Link] UNIFORM DRESS CODE VIOLATES THE PETITIONERS’

FUNDAMENTAL RIGHTS UNDER ARTICLE 14,19(1)(A),21 AND 25
OF THE CONSTITUTION

It is humbly submitted that uniform dress code would not violate

the petitioner fundamental right the contention supported on the
following grounds:
 Art.14 :

Art.14 of constitution provides the right to equality. On bare

perusal of order which obliges the petitioner including each and every
student to wear uniform dress code within the premises of the college
it would become clear that the order proposes to upheld nothing else
but equality .

 Art.19(1)(a):

Art. 19(1)(a) of constitution proposed right to freedom of speech

and expression. Considering the fact of the case wearing of hijab
might be constitute freedom of expression but this freedom has been
curtailed by putting restriction on it as per Art.19(2) .Hence, as the
state has passed the order of uniform dress code as per its power under
Art.19(2) , it cannot be said to have violated the freedom of
expression of the petitioner or anyone else.

 Art.21:

Art.21 of constitution proposed right of life which is construed as

the most valuable right among the other one . This right to life comes
with only restrictions that procedure established by law. Every
resident within the territory of India has been provide with this right to

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life. Considering the fact that an innocent girl has committed suicide
due to variety of outfits among the student of same age and if
compelling every student to wear uniform dress code within the
premises of the college protect the right to life of such innocent
children then it should never be considered as violation of right to life.

 Art.25:

Art.25 of constitution proposed right to freedom of religion in the

aforementioned paragraphs of this arguments has been made
abundantly clear as to how the compulsion of uniform dress code does
not violate freedom of religion.

[Link] THE GOVERNMENT ORDER AND SCHOOL

CIRCULAR VIOLATES SECULARISM, WHICH IS A BASIC
STRUCTURE OF CONSTITUTION?

 It is humbly 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 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 College , they consented to follow all the norms
of the institution.
 In all advanced countries , there has been an unanimous legal
opinion that, in accordance 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 by students or make reasonable
regulations regarding their personal appearance.
 In MILLER vs. GILLS , a rule that an agricultural high school
should wear a khaki uniform when in attendance at the class and
whilst visiting public places within 5 miles of the school is not
ultra vires ,unreasonable ,and void.
 Similarly, in CHRISTMAS vs. EL RENO BOARD OF

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EDUCATION ,A rule barring male students from participating in a

graduation certificate ceremony if their hair was covering their
eyes ,ears or collars were 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 does not 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 wove
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 us material is that it is a constitutional goal and a
“Basic Feature of the Constitution”.
 The object of prescribing uniform cannot be better stated than by
quoting from ‘MANUAL ON SCHOOL UNIFORMS’ published
by U.S. Department of Education.

‘A safe and disciplined learning environment is the first requirement

of a good school. Young people who are safe and secure, who learn
basic American values and the 118 essentials of good citizenship, are
better students. 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 saftey’.

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 SECULARISM
Inserted in the Preamble of the Constitution by the 42nd
amendment, the meaning of the word ‘secular’ has been defined
and interpreted by many jurists and writers. One simpler definition
incurred so far is that religion cannot be mixed with any of the
State’s secular activities, meaning treating all religious equally,
respecting all religious and protecting the practices of all religions.
In landmark decisions like keshavananda Bharti vs State of Kerla
, S.R. Bommai, T.M.A Pai Foundation, Smt. Indira Nehru
Gandhi vs Shri Raj Narain, secularism has been held as the basic
structure of the Constitution.
▪ Since ages, India is a secular country. For India, there is no
official religion, in as much as it is not a theocratic State. The State
does not extend patronage to any particular religion and thus, it
maintains neutrality in the sense that it does not discriminate
against anyone on the basis of religious identities per se.
▪ Essential Religious Practices should associate with Constitutional
values. The person seeking refuge under the umbrella of Article 25
of the Constitution has to demonstrate not only essential religious
practice but also its engagement with the constitutional values.
▪ Holy Quran does not mandate the wearing of a Hijab or Headgear
for the muslim women

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PRAYER

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED

AND AUTHORITIES CITED, IT IS HUMBLY PRAYED THAT THIS HON’BLE COURT
MAY BE PLEASED :

1) To Quash, the petition filed by the appellant.

2) To Upheld, that the direction issued by the college development community of

college does not violate any provisions of the constitution for the women of the
Muslim community as a whole.

3) To Declare, that hijab is not an essential practice for the women of the muslim
community and the university norms must be followed.

OR PASS ANY OTHER ORDER, DIRECTION, OR RELIEF THAT THIS

HON’BE COURT MAY DEEM FIT IN THE INTEREST OF JUSTICE, EQUITY
AND GOOD CONSCIENCE.

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