Karnataka Hijab Ban: Early Arguments in SC Talk About Law, Idea of Modesty

The court said: “They are not denying right to education what they are saying as State is you come in the uniform."

The apex court is slated to continue hearing a batch of petitions challenging the ban on wearing hijab in educational institutions in Karnataka, at 2 pm on Monday, 5 September.

(Photo Courtesy: The Quint)

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.

The matter is being heard by a bench of Justices Hemant Gupta and Sudhanshu Dhulia.

During the course of the hearing, Senior Advocate Sanjay Hegde, appearing for the petitioners, submitted that the Karnataka Education Act does not permit that women be denied access to government education just because they chose to wear hijab along with their uniform.

The bench, however, asked the counsel:

“You say educational institution cannot issue a rule but what about the State unless there is a statute which prohibits dress code…can a student come in minis, midis, whatever they want?”

Hegde, on his part, subsequently went on to submit:

"The uniform codes in most of the girls’ colleges prescribe for girls a salwar kameez with a dupatta… Can you tell a grown woman that she will not have control over her own idea of modesty, and say that you will not wear your chunni over your head?" he further added.

The court, meanwhile, said, “They are not denying right to education: what they are saying as State is you come in the uniform." The judges also noted that every individual has a right to practise their religion, but the issue that remains is whether the same right can be exercised in a school or college that has a dress code.

What Else Transpired in the Court?

When the judges pointed out that strict dress codes ought to be adhered to even in places like restaurants and golf courses, besides the court, Hegde said:

"Today the context is access to education in a government college, and everybody pays taxes (if not direct taxes, indirect taxes)… The question is about education and access to education for what is traditionally a vulnerable section of society: women… Can you say unless you homogenise, we will not allow you in?"

Hegde also submitted that the hijab row was local to Udupi, but was blown out of proportion due to “the dynamic of politics.”

Meanwhile, at the beginning of the hearing, Senior Counsel Rajeev Dhavan had argued that the case raises an important question regarding whether hijab is “essential” to Islam or not.

On the other hand, Additional Solicitor General KM Nataraj, appearing for the Union government, argued that the only issue is discipline in an institution. To this, Justice Hemant Gupta asked:

"How is hijab violating discipline of institution?"

The ASG’s response was that the students cannot violate the school uniform code under the garb of religious rights.

Meanwhile, getting into the background of the Karnataka Government Order, Advocate General Prabhuling Navadgi said that school authorities had written to them for guidance “since after Hijab, students wore bhagwa shawls and which then led to unrest in educational institutions.”

It may be worth recalling that several people had started donning saffron garbs to schools and colleges in a bid to protest Muslims girls’ right to wear hijab.

“State was cautious not to prescribe any uniform but kept it open for every institution to prescribe uniform...,” Navadgi said, and added, “We only said follow institution rule.”

Previously

Earlier on 29 August, the top court had issued a notice in the matter.

The bench had also taken a stern view of the petitioners’ request for adjournment of the matter, stating:

"We will not permit forum shopping. You wanted urgent listing and now you want hearing adjourned. We will not allow this.”

One of the counsels for the petitioners, however, told the court that “(other) counsels are coming from across India… some are in Karnataka."

The Hijab Ban

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.

What Had the High Court Said?

The Karnataka High Court, however, decided that it was "of the considered opinion that wearing of the hijab by Muslim women does not form a part of essential religious practice in Islamic faith..."

"The prescription of school uniform is only a reasonable restriction that is constitutionally permissible which the students cannot object to," the High Court had said.

The Petitions That Followed

Immediately after the ruling, a series of petitions were filed in the Supreme Court challenging the Karnataka High Court order, but the apex court had decided that it did not need to hear them on an urgent basis.

The matter was finally heard on 29 August, when the court issued a notice, expressed disapproval of the lawyers’ request for adjournment, and listed the matter for further hearing on Monday, 5 September.

Find more details on the background of the case and the issues that the apex court needs to examine here.

(With inputs from Bar and Bench and Live Law.)