The Supreme Court on Monday asked whether a student can exercise her private religious right to wear a hijab in a school which adheres to a dress code.
"You may have a right to wear a hijab, but can you wear that right to school?" a Bench of Justices Hemant Gupta and Sudhanshu Dhulia formulated the substantial question of law on a batch of petitions filed by students from Karnataka who were prohibited entry into their classrooms for wearing hijab.
They have challenged a Karnataka High Court decision that wearing a hijab is not an essential practice of Islam.
"The practice may be essential or it may not be essential. The question here is whether in a government institution, you can insist on carrying on your religious practice… because the Preamble to the Constitution states we are a secular country," Justice Gupta observed orally.
Senior advocate Rajeev Dhawan, for one of the students, said the students did not defy the dress code. They just wanted to wear a hijab in addition to their uniform.
"Yes, there is a dress code. But can't I wear a hijab in addition to the dress code? There are a large number of women, in India and elsewhere, who choose to wear hijab. It is a matter of considerable importance to them… Does the dress code yield to them or do they yield to the dress code?" Mr. Dhawan asked.
He said the restriction on hijab extend to private institutions also.
"I have seen in this court judges wearing tilak on their foreheads and insignia of Vaishnavism… I have seen in court too the portrait of a judge wearing a pagdi…" Mr. Dhawan argued.
"Wearing a pagdi was usual in royal States…" Justice Gupta said.
"A uniform must be uniform," Justice Sudhanshu Dhulia said.
"But can't the uniform be worn in a manner consistent with an individual's choice of her belief and morality… Can a government put students to the pain of banning them from their classrooms, which is like capital punishment for students, just because they are extra clad," senior advocate Sanjay Hegde, also for the students, argued.
Mr. Hegde said students could wear hijabs of a colour consistent with their uniforms. "Can you deny them education on the ground that they are overdressed? he asked.
Mr. Dhawan said the questions before the court were basically two: one, given a dress code, is there a right to superimpose on that a religious right as well, and how can both be reconciled? Two, if a student wears a scarf, can she wear it to school and even to her classroom?
"What this court will rule will have an effect across the world. The hijab is an issue covering a large number of countries and civilisations. The decision of the Indian Supreme Court will be one of momentous importance," Mr. Dhawan said.
Lawyers for the petitioners suggested referring the petitions to a Constitution Bench.
Additional Solicitor General K.M. Natraj said the issue was “simple” and concerned “discipline”. “How is discipline violated if a girl child wears a hijab?” Justice Dhulia asked.
The Advocate General for Karnataka said the State had left it to the individual institutions to decide their dress codes. It had merely said the students should adhere to the respective dress codes of their institutions. He said the college development committees in government colleges, which are composed of government officials and representatives of parents, teachers and students, etc., decide the dress code.
“A Muslim girl pursuing her education wearing a hijab/headscarf offends no right of any person and militates against no State interest… Petitioner does not wear the hijab as a form of any political symbolism or to intimidate, heckle or belittle her fellow classmates or any other person,” Fathima Bushra, one of the student petitioners, has contended.
She said the restrictions were “bound to have an impact on the rights of Muslim women across the country”.
Students have argued in their petitions that they had approached the Karnataka High Court, expecting it to protect their fundamental rights and quash a State government order 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 cannot prescribe uniforms for students. It is for educational institutions to do so. Moreover, the law does not provide for the formation of “college development committees”. Further, Karnataka Educational Institutions Rules of 1995 do not make it mandatory for a school or institution to prescribe a uniform. In their case, no uniform had been prescribed by their respective institutions.
The court adjourned the case to Wednesday at 2 p.m.
