Appeals filed in the Supreme Court challenging Karnataka High Court’s conclusion that wearing hijab is not an essential practice in Islam has been in limbo for several months.
The petitions, filed mostly by affected girl students, raised the question whether the State could interfere if a student wore a hijab to college without causing any harm to others and under the firm belief that it was a part of her religious observance and practice.
The students also brought to the fore the issue whether a woman’s dignity and the right to access to education should suffer because her dress code could not be accommodated by the authorities of an educational institution.
The Supreme Court in the S. R. Bommai case of 1994 had observed that “religious freedom is the hallmark of pluralism and inclusiveness”. The Constituent Assembly debates note how the establishment of a secular State was an act of faith, the onus on the majority community to show that they could behave towards others in a generous, fair and just way.
The case was repeatedly mentioned in court during March and April for urgent hearing. The court had assured that they would be listed. However, the appeals remain to be heard.
This, despite the fact that in February, the Supreme Court had assured the students protection of their constitutional rights and intervention at an “appropriate time”.
‘Violation of right to privacy’
One of the pending petitions filed by Niha Naaz, represented by Anas Tanwir, had raised the issue of right to privacy. Ms. Naaz had argued that denying Muslim girls like her access to education, and thus, punishing them for wearing hijab to college, was a violation of their right to privacy.
“Freedom of conscience forms a part of the right to privacy,” her petition said.
Any infringement of her right to privacy should be on the basis of a valid law, for a legitimate state interest and the law must be proportionate. No law prohibited hijab, she said.
Ms. Naaz argued that the High Court judgment had created a “dichotomy of freedom of religion and freedom of conscience”.
“This freedom would include the freedom to lawfully express one’s identity in the manner of their liking,” the student referred to the Supreme Court judgment in Navtej Singh Johar case.
She said that students like her had expected the High Court to quash a State government order of February 5 directing college development committees to prescribe uniforms for them.
She termed the State government’s order as a “ridiculing attack” on Muslim students wearing hijab under the “guise of attaining secularity and equality on the basis of uniform”.
She said the State could not prescribe uniforms for students. The law did not require a student to be punished for not wearing a particular uniform.
