[Hijab Row] ‘Can Students Come in Minis, Midis, or Whatever They Want?’ SC Questions During Hearing

Supreme Court Advocates LAW INSIDER

Khushi Bajpai

Published on: September 6, 2022 at 21:49 IST

The Supreme Court, on Monday, heard a batch of petitions challenging the Karnataka High Court’s judgment which upheld the ban on wearing hijab by Muslim girl students in some schools and colleges in the state.

The matter was heard by the bench comprising Justices Hemant Gupta and Sudhanshu Dhulia.

At the outset, Senior Advocate Dushyant Dave, appearing for petitioners, requested the matter to be taken on a non-miscellaneous day, while stating that there were “substantial questions, not only constitutional issues, but questions of general importance” which would be argued and thus the submissions would be rather detailed. He stated that it was difficult to get the books inside a crowded court room on miscellaneous day.

Senior Advocate Rajeev Dhawan added to the request, stating that the court was extremely crowded. However, the court insisted on starting the matter and it was accordingly heard on the same day at 2 p.m.

Before the merits of the case were heard, advocate Ejaz Maqbool suggested that all pleadings could be compiled into one matter, which could be dealt with as the lead matter.

The bench agreed to the same and opined that the said compilation could be completed in a day or two. The bench was informed that within the batch of the petitions, some petitions were filed against the interim order passed by the Karnataka high court.

The bench accordingly noted that such petitions would be disposed of as infructuous.

“State was very conscious, that we will not prescribe uniforms. As per rule 11, uniforms are prescribed by the institutions. We directed institutions to prescribe uniforms. Some of the institutions prohibited hijab. Those resolutions have not been challenged.”

“This govt order does not violate the right of the students. We are not saying don’t wear hijab or wear hijab.”

We don’t say either way. We only say follow the uniform prescribed. Once the students realized that institutions prohibited hijab invoking rule 11, they elevated their argument that our rights under article 25 are violated. The government order is not very happily worded, but the purport of the order is to follow the prescribed uniform.”

“Is wearing a headscarf a mandatory religious practise?”

According to Article 145(3) of the Indian Constitution, a constitutional question must be addressed to the constitution bench, according to senior attorney Rajeev Dhawan. The dilemma of whether these ladies should submit to the government or the dress code, and if wearing a headscarf constituted a “important religious practise,” he said, arose since there were many women engaged in the matter.

In response, Justice Gupta said that while wearing a scarf could or might not be a requirement, it might be an issue of whether the government could control the dress code.

Sr. Adv. Dhawan contended that justices wore pagdis, tilaks, and other attire even in the Supreme Court. Justice Gupta, however, intervened and clarified that “Pagdi” was a non-religious ornament that was once worn in royal realms.

Karnataka Education Act of 1983 Provisions

Sr. Adv. Hegde called the court’s attention to Section 39 of the Karnataka Education Act to support his claims.

Any local authority or the governing council of any private educational institution is prohibited by Section 39 from refusing admission to any citizen on the basis of religion, race, caste, language, or any combination of them, or from directly or indirectly supporting any propaganda or practise hurting the religious feelings of any class of Indian citizens or disparaging religion or those citizens’ religious beliefs in the educational institution.

He further referred to Section 133 of the Act, which stipulates that the authority of the State to issue directions is subject to other Act provisions including the authority to make rules. He argued that the government could not impose regulations on matters such as dress code.

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