The Supreme Court snubbed the pro-hijab petitioners on 5 August, saying that while the Indian republic allowed practices of all religions, a religious practice could not be carried to an institution that has a certain dress code or uniform. Hearing petitions challenging the Karnataka High Court’s verdict to uphold the restriction on wearing hijab in educational institutions, the Supreme Court said: “You may have a religious right to practise whatever you want. But can you take that right to a school which has a uniform?”
“We will concede for a moment that you have a right to wear a scarf or hijab wherever you feel like, but can you carry that hijab to a school where uniform is prescribed,” Justice Hemant Gupta asked Senior Advocate Sanjay Hegde, who appeared for one of the petitioners.
The pro-hijab petitioners argued that the state government was invoking the Karnataka Education Act, 1983, to deny education to some sections. The bench, also comprising Justice Sudhanshu Dhulia, retorted, “They are not saying that they are denying any right. What the state is saying is that you come with a uniform, which is prescribed for the students.”
The senior counsel tried to draw parallels between a “chunni” (dupatta) and “hijab”, saying the former was already part of the uniform, but the court pointed out that the two could not be compared. There is a “lot of difference”, said Justice Dhulia. “If you are depicting a chunni as a hijab, you are probably not right. Chunni is used to cover the shoulders,” said Justice Gupta.
Hegde argued that a chunni is also used by women to cover their heads in the presence of elders, Justice Gupta said: “No, in Punjab, that is not the culture. Sikh women use it to cover their heads when going to gurudwara to pay obeisance. Nothing more than that.”
Another lawyer standing for hijab, Senior Advocate Rajeev Dhavan said as the matter involved constitutional issues like whether wearing a hijab was an essential religious practice, a constitution bench needed to study it.
Justice Gupta said the question could be modulated in a different way. “It may or may not be an essential practice, but in a government institution, can you insist on religious practices? The preamble to our constitution says secular country,” he said.
Dhavan said he had seen judges wearing tilak in court. The senior counsel added that in Court 2, there was a painting of a judge wearing a pagdi.
The bench responded that “wearing it (pagdi) was a practice in royal states”. Justice Gupta said his grandfather used to wear a pagdi while practicing law. “Don’t equate it with religious insignia,” he said.
Dhavan then gave an example from France that practises a strict form of secularism. He said the issue before the Supreme Court “concerns a huge number, millions, who comply with the dress code but also want to wear a hijab. This is a constitutional question”.
Dhavan said the world would be watching the Supreme Court’s decision. “Hijab is something that affects a large number of countries and civilisations,” he said, adding that the Supreme Court’s decision would be of “momentous” importance.
Defending the state, Karnataka Advocate-General PK Navadgi recalled the developments leading to the Government Order (GO) on 5 February. He said that the state witnessed unrest and some educational institutions and district authorities approached the government and sought guidance in the face of rampant violence.
The Karnataka advocate-general said the GO only says that students should wear uniform as determined by their governing bodies. “(The) state was very conscious that we will not prescribe uniforms to every institution. All that we say is Rule 11 of the Karnataka Education Prescription of Curricular Rules provides that it is for every recognised educational institution to prescribe a uniform to its students. Therefore, since you are seeking directions from us…we hereby direct all educational institutions to prescribe a uniform for their students,” he said.
“Pursuant to this, educational institutions in the state prescribed uniforms to their students. Some of them chose to prohibit wearing hijab. Those resolutions or decisions of government or private schools have not been called into question. The challenge came before HC of this GO. My argument before the HC, which was accepted, is this: GO does not interdict any of the rights of the petitioners. We do not say wear hijab or do not wear… All that we say is follow Rule 11,” the Karnataka advocate-general said.
The lawyer defending the Government of Karnataka said when the students realised that institutions had invoked Rule 11 to prohibit wearing hijab, they tweaked their argument to say this was part of religious practices and violated rights under Article 25.
In government colleges, authority was given to the college development council that comprised representatives of students, parents, teachers, local MLA, two Scheduled Caste representatives and two members of the Scheduled Tribes etc, to prescribe the uniform, he said. In the case of private educational institutions, they have a governing body which prescribes the dress, the Karnataka advocate-general said.
When the bench asked the Karnataka attorney-general to elaborate, he said there might be some recognised private educational institutions that had allowed the hijab. He said they were free to take the decision. There may be educational institutions run by Islamic managements that have allowed it, the added.
Previously, Hegde had questioned the scope of the Karnataka Education Act and Rules and asked: “Can you (student) be debarred from the classroom if you wear a particular dress? Can you make education to women contingent on their attire? Can you exclude someone from a college just because you think they wear a uniform that does not subscribe to the dress code? Can you tell a grown woman that she will not have control over her own idea of modesty?”
Hegde argued that the college development council comprised local MLA and politicians and had no legal sanctity under the law.
Justice Gupta pointed out that a golf course had a dress code too. “Can we say we will not follow it?” he said. Hegde responded that a golf course was a private property. The bench pointed out that it was a public space.
The bench then referred to restaurants which had dress codes. Hegde replied that everything came down to context.
Responding to Hegde’s argument about the kind of education that the 1983 Act envisaged, the court asked “whether it prohibits any fixation of dress culture? That the students can come in minis, midis, whatever they want?”
Hegde replied that there was no such prescription at all. The bench said that in that case, “the executive power of the state will come in”.
The arguments remained inconclusive and will continue on 7 September.
On 15 March, a full bench of the Karnataka High Court had dismissed a batch of petitions filed by Muslim girls studying in pre-university colleges in Udupi, seeking the right to wear the hijab in classrooms. The high court had stated that wearing the hijab is not an essential religious practice in Islam and that the Freedom of Religion under Article 25 of the Constitution is subject to reasonable restrictions.
The high court had also upheld the government order issued on 5 February, which suggested that wearing hijabs can be restricted in government colleges where uniforms are prescribed, and ruled that such curbs under norms for college uniforms are “constitutionally permissible”.
A clutch of petitions and appeals were filed in the Supreme Court challenging this.