The Supreme Court on Monday said the fundamental issue to be decided in the Karnataka hijab case is whether the State can impose limitations on the fundamental rights of students in classrooms.
"Can there be any limitations to fundamental rights in classrooms? Please address that question," Justice Sudhanshu Dhulia, who is part of the Bench led by Justice Hemant Gupta, asked senior advocate Dushyant Dave.
"My fundamental right can be exercised anywhere… Whether I am in my bedroom, my classroom or whether I am before Your Lordships," replied Mr. Dave, appearing for student-petitioners who have been proscribed from wearing hijab to class in Karnataka.
Justice Gupta at one point observed that people covered their heads when they went to places of respect.
To this, Mr. Dave answered that "a classroom is the most respected of all places". He agreed there was a tradition in India to mark respect by covering the head. "Look at our Prime Minister… when he addresses from the Red Fort, he wears a turban representing the colours of all the States," Mr. Dave said.
The court asked what Mr. Dave would define as "religious practice". The students have argued that the hijab was synonymous with their religious identity and belief.
The court wondered whether religious practices would only mean those ostensibly associated with religion.
The Bench said Muslim women going to the dargah or Parsis visiting the fire temple were practices of their respective religions.
"But does 'religious practice' include dress?" Justice Gupta asked.
The Bench said wearing a particular dress, like a white or an orange-coloured dhoti while conducting puja, may be linked to religion. But was wearing a particular dress outside religious places within the ambit of 'religious practice'?
"Religious practice is not confined to a temple or a dargah, etc. It is part of one's religious conscience… One cannot quarrel with a Muslim woman's faith or belief to wear hijab," Mr. Dave responded.
He quoted the Constituent Assembly debates to note that the only religion that matters before the court is the Constitution.
Mr. Dave described India as a "beautiful democracy" where the majority was obliged not to discriminate against the minorities. He said the secular state in the Indian Constitution meant a state that does not discriminate on religion, a state that does not patronise nor prefer one religion over the other.
"There are more than 10,000 suicide bombings in the Islamic countries and only one happened in India — Pulwama. This shows that the minorities still place their trust in the majority," he said.
The senior lawyer said religion was a "difficult frame of mind among the masses. It is for the leaders to control. If leaders fail, it becomes a difficult problem".
