Hijab Case Day 6: 'No Barter Between Right to Privacy & Education,' Lawyer to SC

Advocate Jayna Kothari argued that the hijab ban was discriminatory on the grounds of both religion and sex.

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The Supreme Court, on Thursday, 15 September, continued the hearing of petitions challenging the hijab ban in educational institutions in Karnataka.

During the day's proceedings, Advocate Shoeb Alam, arguing on behalf of the petitioners, said that the Karnataka government cannot ask students to give up their right to privacy for their right to education.

He also said that the hijab is a matter of a person's identity and that the extent to which people wish to cover their body or "feel secure from public gaze" was a matter of personal choice, Live Law reported.

"On one end there is my right to education, on the other end, there is my right to privacy, right to dignity, right to culture," he said, adding, "The state government says, I will give you education provided you surrender your right to privacy. Can it be done? The answer is an emphatic no."

The batch of petitions filed by female students challenging the ban on hijabs in Karnataka educational institutions is being heard by a bench of Justices Hemant Gupta and Sudhansu Dhulia.

'Hijab Ban Is Discriminatory on Grounds of Both Sex and Religion'

Senior advocate Jayna Kothari, meanwhile, argued that the hijab ban was a case of "intersectional discrimination" as it was discriminatory on the grounds of both sex and religion.

"Here, it is both sex and religion. It is the Muslim girls who are specifically affected by this, not others. So, there is an intersection under Article 15(1). It is not a case where all girls are discriminated or all Muslims are discriminated, but it is specifically affecting Muslim girls," Kothari asserted.

On the other hand, advocate Meenakshi Arora submitted that the Karnataka High Court, while upholding the ban on hijabs, had completely forgotten that India has ratified the Convention on the Rights of Child, which protects children's right to practise faith.

She further argued that the case was important from a global standpoint with regard to providing "reasonable accommodation" to religious minorities.

"Why I refer to other jurisdictions? Just as we Hindus are a majority in our country and minority elsewhere, wherever we are a minority we carry our practices," Arora said.

Background

The Supreme Court began hearing arguments in the batch of petitions challenging the ban on hijab in educational institutions in Karnataka on Monday, 5 September. On 29 August, the top court issued a notice in the matter.

In March this year, the Karnataka High Court upheld the state government's ban on Muslim students wearing hijabs in schools and colleges. The ban was packaged as a general rule on following uniforms without wearing religious garb.

The female students had protested the hijab ban, first imposed by individual institutions and then through a government order, and had said that it was a component of their essential religious practice.

They also said that their freedom to dress that way was constitutionally validated as freedom of conscience and that such bans on their religious attire were hostile discrimination.

(With inputs from Live Law.)