On Monday (September 5), the Supreme Court of India heard a batch of appeals, which challenged the order of the Karnataka High Court that barred female Muslim students from wearing hijabs in government schools and colleges.
The matter came up before a 2-Judge Bench of Justice Hemant Gupta and Justice Sudhanshu Dhulia. Although the case has been adjourned till Wednesday (September 7), several key arguments were made in the apex court.
During the heading, Justice Gupta asked Senior Advocate Rajiv Dhawan, “Can you say that you want to wear a religious thing in a government educational institution?” He further added, “Our constitution says ours is a secular country and can in a secular country you say that a religious clothing has to be worn in a govt run institution. this can be an argument.”
Justice Gupta: Our constitution says ours is a secular country and can in a secular country you say that a religious clothing has to be worn in a govt run institution. this can be an argument
— Bar & Bench (@barandbench) September 5, 2022
When Senior advocate Hegde tried to make the issue about women’s liberty to wear the dress of choice, Justice Hemant Gupta reminded him that a female lawyer once appeared before the apex court in a jeans.
“..And she was asked not to. She can also say I will wear what I want…Mr Dave will tell us that a dress code is there for a golf course as well,” he said. Justice Gupta added, “It can also be the norm or rule that shorts are not allowed in a restaurant”
Justice Gupta: Mr Dave will tell us that a dress code is there for a golf course as well
— Bar & Bench (@barandbench) September 5, 2022
Hegde: that is a private party
Justice Dhulia: it is not a private property
Justice Gupta: it can also be the norm or rule that shorts are not allowed in a restaurant
Advocate Hedge claimed that several female Muslim students were forced to choose alternate options, owing to the ‘hijab ban’ in government schools and colleges.
“One girl joined a private college where hijab is allowed. The second girl is doing 12th at a private school… this judgment will have bearing on a vast section of society,” he claimed. The Court asked whether ‘access to education’ will be denied if hijab is not entertained in government institutions.
Hegde: When education for girls started .. by Ishwar Chandra Vidyasagar they used to be taken in covered cars…
— Bar & Bench (@barandbench) September 5, 2022
SC: Okay got it.. access to education will be denied if hijab is not allowed.
Advocate Hedge claimed before the apex court that the Karnataka Government order, upheld by the Karnataka High Court, compromised the fundamental rights of Muslim students.
“You say educational institutions cannot issue a rule but what about the state unless there is a statute which prohibits dress code? So tell me can a student come in minis, midis, whatever they want,” Justice Dhulia asked.
He added, “…Tell me if the act prescribes something or not, then will the state executive power will come into play or not?”
SC: we need not follow blindly what HC said, but tell me if the act prescribes something or not , then will the state executive power will come into play or not?
— Bar & Bench (@barandbench) September 5, 2022
Hegde: the executive power cannot be exercised at the cost of fundamental rights #HijabBan
During the hearing, Justice Gupta said, “You may have a religious right and can you take that right within an educational institution where a uniform is prescribed? You may be entitled to wear a hijab or scarf. Can you carry the right within an educational institution which prescribes uniform?”
He added, “They are not denying the right to education what they are saying as the state is you come in the uniform…”
Justice Gupta: they are not denying right to education what they are saying as state is you come in the uniform…
— Bar & Bench (@barandbench) September 5, 2022
Hegde: But chunni is there as uniform#hijabban
During the hearing, the apex court was informed that the Karnataka government’s order to bar religious outfits in its institutes did not apply to minority educational institutions.
In government run-institutes in Karnataka, the college development authorities have been given the power to decide for themselves. The Court was informed that some PU Colleges have disallowed hijab in their institutions.
SC: What about govt run institutions?
— Bar & Bench (@barandbench) September 5, 2022
Navadgi: the college development committees are entrusted to take a call. some have taken order to not allow hijab like the udupi college and that is not under challenge here. #hijabban
Prior to the adjournment of the matter for Wednesday (September 7), the Supreme court was informed that Christian minority institutions have also disallowed the wearing of hijab in their classrooms.
SC: List the matter for September 7, 2 pm for hearing. #hijabban
— Bar & Bench (@barandbench) September 5, 2022
The Hijab row so far
In February this year, some Muslim students from a PU College in Udupi filed a petition in the Karnataka High Court to allow them to attend classes in Hijab. They were denied entry into classes after the college management made it clear that the hijab is not part of the uniform. Since then, the ‘students’ launched protests while being dressed in burqas.
The Muslim students had admitted to being in consultation with the PFI-backed Campus Front of India (CFI). Subsequently, the lawyers representing the Muslim students cited Sharia in the secular court to make a point on the hijab, claiming that it is an essential religious practice for Muslim women.
However, on March 15, the Karnataka High Court held that Hijab is not an essential practice in Islam and that the uniform is a reasonable restriction on the Right to Religion. Following the verdict, liberals and Islamists took to Twitter to cast aspersions on the independence of the Judiciary.
