Hijab not prohibited; wearing it to school the issue: SC

The Apex Court disagreed that the Karnataka government’s February order on making uniforms mandatory targeted just one community.

Responding to Hijab Ban in schools, Supreme Court observed that only one community wants to come to educational institutions wearing hijab while others are willing to follow the dress code. The Apex Court disagreed that the Karnataka government’s February order on making uniforms mandatory targeted just one community.

Petitioner’s submissions against the hijab ban that “right to dress is a fundamental right since it involves freedom of expression” were also disagreed by the bench of justices Hemant Gupta and Sudhanshu Dhulia while hearing the Karnataka hijab ban cases.

Nobody has prohibited wearing hijab

“You cannot take it to illogical ends. If the right to dress is a fundamental right, the right to undress also becomes a fundamental right... Nobody is prohibiting you from wearing the hijab. The question is about wearing it in school,” the bench told senior advocate Devadatt Kamat, who was appearing for a girl student from Udupi which turned out to be the epicentre of the original protests seeking to wear the hijab.

Kamat sought to persuade the bench that the February Government Order (GO) by the state government specifically mentioned that wearing of hijab is not a part of essential religious practice of Islam, arguing that the GO targeted only one community. The bench, however, responded: “You may not be right. Only one community wants to come with hijab or head scarf while all other communities are following the dress code.”

Students wear religious symbols such as rudraksha, cross

Kamat tried to argue that it may not be true only about one community since students also wear a ‘rudraksha’ (stonefruit worn by Hindus) or a cross in schools and colleges, and therefore the question is about showing a religious symbol in addition to wearing the uniform. “The State is required to be more generous. That’s the concept of reasonable accommodation,” he added. But the bench retorted: “Rudraksha or a cross is not worn outside but under your shirt. Nobody is asking you to take out your shirt to see what you are wearing and hence, it does not bother anyone. It is not a violation of a dress code.”

Clarifying that he is not challenging the prescription of uniform but the mandate of the state to deny fundamental rights of those wanting to wear a hijab without contravening the dress code, Kamat contended that the ban on hijab cannot be justified either as a reasonable restriction or on the grounds of public order.

He also said that only a constitution bench should hear the clutch of petitions against the March 15 judgment by the Karnataka high court, which held that wearing of hijab by Muslim women does not form a part of essential religious practice in Islam. The petitioners include girl students, women’s right groups, lawyers, activists and Islamic bodies.

“The issue is whether a student citizen in our Constitutional scheme is expected to surrender her fundamental right in lieu of access to education. The argument of the state is that you keep your fundamental rights at home when you come to school...(but) I (the petitioner students) was wearing it (the hijab) for years until some nationalist woke up and said this is anti-national,” argued Kamat.

Judgments from UK, USA, Canada & South Africa courts cited

The senior lawyer also cited various judgments from courts in UK, USA, Canada and South Africa to bring home his point that religious and cultural rights are to be respected by educational institutions.

At this point, the bench told Kamat, “How can we compare India to USA? The judgments that you are citing are based on their society, their culture. We cannot totally follow them here... no other country has diversification like our country. All other countries also have uniform law for all their citizens unlike us.”

During the 120-minute hearing, Kamat also emphasised that the concept of secularism accepted by the Supreme Court is “positive secularism”, as he quoted a verse from Upanishads that meant one God is worshipped in different names.

To this, the court remarked, “Is that statement that there is one God and different ways to achieve it accepted as true by all faiths in India? Is that a correct statement? Do all religious streams accept it since you are arguing it? Mr Kamat, our Constitution talks about secularism and not faiths.”

The hearing will further resume on Thursday.

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