New Delhi, September 5
A person has the right to practice a religion, but the question is whether they can be taken to a school that has a prescribed uniform, the Supreme Court observed Monday during the hearing of the Hijab ban line of the Karnataka.
Hearing arguments on a series of pleas challenging the Karnataka High Court’s verdict refusing to lift the ban on hijab in educational institutions in the state, the top court asked whether a student can wear hijab in a school where the uniform has been prescribed.
“You can have the religious right to practice whatever you want to practice. But can you practice and take this right to a school that has a uniform as part of the attire you must wear? That will be the question,” said a panel of judges Hemant Gupta and Sudhanshu Dhulia.
The Supreme Court put the question to lead attorney Sanjay Hegde, who was defending some of the petitioners.
On the argument that banning the hijab may deprive women of education, the bench noted that the state is not saying it is denying a right. “What the state is saying is you come in a uniform that is prescribed for students….” he said.
Hegde pointed out that what the supreme court will hold in this case will affect the education of a large part of society. He also referred to the provisions of Karnataka Education Act 1983.
The Additional Solicitor General (ASG), KM Nataraj, said the issue is very limited and relates to discipline in educational institutions.
When asked by the court, “How is discipline in a school violated if a girl wears the hijab?”, the ASG said, “Someone under the guise of their religious practice or religious right cannot say that I have the right to do so, so I want to violate school discipline”.
Advocate General of Karnataka Prabhuling Navadgi referred to the state government order dated February 5, 2022 in which he had banned the wearing of clothes that disturb equality, integrity and public order in the schools and colleges, which some Muslim girls had challenged in the high court.
Navadgi argued that it was not the state but the educational institutions concerned that prescribed the uniforms.
“This government decree does not prohibit any of the rights of students,” he said during oral arguments which will continue on September 7.
Lead Attorney Rajeev Dhavan, who also appeared in the case, referred to Article 145(3) of the Constitution and said it was a matter of considerable importance. The article deals with the minimum number of judges required to adjudicate on any substantive question of law relating to the interpretation of the Constitution.
On whether wearing the hijab is an essential practice under Section 25 of the Constitution, the bench said, “The question can be modulated a little bit differently. It may be essential, it may not be essential. »
“What we are saying is whether in a government institution you can insist on practicing your religious practice. Because the preamble says ours is a secular country,” the bench observed.
Dhavan said the issue raised in court concerns millions of women, who follow the dress code in educational institutions but also want to wear the hijab.
“What this court decides, the whole world will listen to,” he said, adding that the supreme court’s decision on the matter will be of paramount importance.
During oral argument, the bench observed that if the Education Act of Karnataka does not permit prescribing a dress code, the question would be whether the law prohibits the dress code.
“Can students come in minis, midis, whatever they want,” the bench observed.
Hegde said that the executive power of the state cannot be in violation of fundamental rights.
The Supreme Court last week issued an opinion to the Karnataka government on these means.
Solicitor General Tushar Mehta, appearing for Karnataka, had said a question of law was involved in the case and no counter could be sought.
Several petitions have been filed in the Supreme Court against the March 15 verdict of the Karnataka High Court that the wearing of the hijab is not part of the essential religious practice which can be protected under Article 25 of the Constitution.
The high court had rejected petitions filed by a section of Muslim female students at the Government Pre-University Girls College, Udupi, asking for permission to wear the hijab inside the classroom.
The school uniform requirement is only a reasonable, constitutionally acceptable restriction which students cannot object to, the High Court has heard.
In one of the pleas to the Supreme Court, the petitioner said the High Court “erred in creating a dichotomy between freedom of religion and freedom of conscience in which the court inferred that those who follow a religion cannot have the right to conscience.”
“The High Court did not note that the right to wear the hijab falls within the right to privacy under Article 21 of the Constitution of India. It is argued that freedom of conscience is part of the right privacy,” he said.
Challenging the February 5 government order, the applicants had argued before the High Court that wearing the Islamic headscarf was an innocent practice of faith and an essential religious practice (ERP) and not a manifestation of religious chauvinism.