While hearing pleas challenging Karnataka HC’s verdict of upholding the ban on hijab, the Supreme Court on Thursday opined that there were statutory rules which say that educational institutions have the power to prescribe uniforms.
Responding to Advocate Prashant Bhushan’s contention that the schools could not restrict entry for not wearing a dress and that a public institution particularly a government institution could not impose a dress code, Justice Hemant Gupta asked, “So your submission is that government schools can’t have a uniform?”
“Yes but even if they can, they can’t restrict hijab,” Bhushan responded. “The rules they say have the power to prescribe uniforms. Hijab is different,” Justice Dhulia said.
Bhushan also argued that over the years, Muslim girls wearing hijab had acquired relgious identity which was protected under article 25 of the Constitution “It may not be prescribed as an essential practice by Quran but if it is bona fide practice followed by several women, it cannot be proscribed,” he added.
To make good his submission that the severe fall out of the Government Order (GO) which restrained students to wear the hijab, or customary Islamic headscarf to educational institutions was the dropout of Muslim girls, Senior Advocate Kapil Sibal referred to the RTI reply obtained by Deccan Herald as per which 145 out of 900 Muslim girls in Dakshina Kannada took transfer certificates (TC’s).
Responding to the judge's question as to whether the TC’s were taken after completion of the class, Sibal said that they were taken before completion of the class.
“See the national impact of upholding such an order, it can be very disturbing and allows invasion of rights of persons who are protected under the Constitution,” Sibal said.
He also added that the consequence of depriving young girls is depriving them of the fundamental right of access to education, privacy, dignity. Sibal also said that there was no “compelling need” for the state government to pass the GO.
Referring to some students wearing orange shawls to protest against Hijab, the bench said, “Some other students started wearing gamcha and all, that’s why they passed an order.”
“Preserving the composite nature of our culture is a fundamental duty. It’s their fundamental duty to allow us to wear it. They can't object, who are they to object? They have no right to object. They tried to create an environment in which the state takes action. Individuals on the roadside cannot say you don’t wear a hijab. Where is the question of saying that in school,” Sibal responded.
Karnataka HC’s judgement is not respectful of the minority community, Senior Advocate Colin Gonsalves told the court. He also said the judges and courts must ask that if the turban is allowed, why not hijab? Apart from the Constitutional protection 75 years ago, what is the difference between a turban and hijab? Women feel about the hijab with the same intensity and religiosity as a Sikh boy feels about the turban.
Senior Advocate Jayana Kothari submitted that the ban only affected Muslim girls wearing hijab and that promoted intersectional discrimination as it discriminated religion as well as sex.
“Across the countries, most people who practice Islam recognise wearing of hijab as part of their religious and cultural practice. When a large number of courts across the world and a large segment of the population across the world recognize the hijab as part of religious and cultural practice, who are we to reinvent the world and say it's not an essential practice? We are part of a global village and we don’t live in isolation,” Senior Advocate Meenakshi Arora submitted.
Emphasising the fact that there is no concept of barter of fundamental rights, Advocate Shoeb Alam said, GO was an executive order & if the government wanted to restrict hijab, it could only be done by way of law.