India believes in 'positive secularism' based on tolerance of all religious faiths and not 'negative secularism' followed in countries like France which holds that display of religion in public is offensive, Aishat Shifa, a student from Karnataka who has challenged the ban on wearing hijab to school, told the Supreme Court on Wednesday.
Ms. Shifa's lawyer, senior advocate Devadautt Kamat, said all religions are different paths to God.
"But do all religions accept this? That there is only one God… Is that stream of thought accepted by all religions?" Justice Hemant Gupta, leading Bench comprising Justice Sudhanshu Dhulia, asked.
Mr. Kamat replied that the Constitution itself says that all religions have to be treated with equal respect. He said the Supreme Court has also held in the Aruna Roy judgment that there should be no discrimination on the ground of any religion.
The senior lawyer, for Ms. Shifa, who was present in the courtroom, said the state should show ‘reasonable accommodation’ of Muslim students’ right to wear hijab to school as a part of her expression, religion and dignity.
"If you say the right to dress is a fundamental right then the right to undress also becomes a fundamental right…" Justice Gupta remarked.
"No one is undressing in school, My Lord," Mr. Kamat replied. Mr. Kamat referred to a South African judgment which said that display of religious and cultural practices in educational institutions should not be treated by the state as a "parade of horribles" but as a "pageant of diversity".
A student's right to wear a hijab to her classroom should be protected if it has emanated from her “genuine and conscientious religious faith”, the senior lawyer quoted the court's own judgment in the Bijoe Emmanuel case of 1986.
The state can only restrict her right in three circumstances, Mr. Kamat noted. One, to protect public order, morality and health. Two, to protect another fundamental right. Three, if such a restriction is authorised by a law made to regulate or restrict any economic, financial, political or secular activity which may be associated with religious practice or to provide for social welfare and reform”.
He said the Karnataka government order had targeted only one community. It had prohibited the wearing of headscarves. He said students of all communities tend to wear religious symbols and insignia to school. Some wear it beneath their clothes and some outside in full public display.
"Secularism does not mean that students of only one faith are banned from their displaying their religious identity," Mr. Kamat argued. At one point, the court asked Mr. Kamat how quoting foreign judgments would help his case in the Indian context.
"Their judgment came in the context of their societies. We are a conservative society," Justice Gupta said. "But let us allow good things to flow from everywhere, as the Vedas say," Mr. Kamat replied.
