KARNATAKA HIJAB BAN: ‘CAN YOU TAKE RIGHT TO PRACTISE RELIGION TO SCHOOL WITH UNIFORM? SAYS SC

“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.

On the argument that the Karnataka Education Act, 1983, was being invoked to deny education to some sections, the bench, also comprising Justice Sudhanshu Dhulia, said: “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 couldn’t 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.

As Hedge submitted 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.”

Senior Advocate Rajeev Dhavan. who also appeared for the appellants, said as the matter involved constitutional issues like whether wearing a hijab is an essential religious practice, a Constitution Bench needs to look into 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.

Earlier in the hearing, Hegde 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?”

He contended that the college development council comprises the local MLA and politicians, and has no legal sanctity under the Act.

Justice Gupta pointed out that a golf course also has a dress code. “Can we say we will not follow it,” he said. Hegde responded that a golf course is a private property. The bench pointed out that it is a public space.

The bench then referred to restaurants which have a dress code. Hegde replied that everything comes down to context.

To Hegde’s argument about the kind of education that the 1983 Act envisages, 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 is no such prescription at all. The bench responded that in that case, “the executive power of the state will come in”.

The arguments remained inconclusive and will continue on Wednesday.

On March 15, 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 HC 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 HC had also upheld the government order issued on February 5, 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..