SC: Nobody prohibiting hijab, wearing it to school the issue | Latest News India - Hindustan Times
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SC: Nobody prohibiting hijab, wearing it to school the issue

By, New Delhi
Sep 08, 2022 09:54 AM IST

During the 120-minute hearing, advocate Devadatt Kamat also emphasised that the concept of secularism accepted by the Supreme Court is “positive secularism”

Only one community wants to come to educational institutions wearing hijab while others are willing to follow the dress code, the Supreme Court observed on Wednesday as it prima facie disagreed that the Karnataka government’s February order on making uniforms mandatory targeted just one community.

Hearing the Karnataka hijab ban cases, the bench of justices Hemant Gupta and Sudhanshu Dhulia also disagreed with the submissions of one of the petitioners that right to dress is a fundamental right since it involves freedom of expression.(ANI)
Hearing the Karnataka hijab ban cases, the bench of justices Hemant Gupta and Sudhanshu Dhulia also disagreed with the submissions of one of the petitioners that right to dress is a fundamental right since it involves freedom of expression.(ANI)

Hearing the Karnataka hijab ban cases, the bench of justices Hemant Gupta and Sudhanshu Dhulia also disagreed with the submissions of one of the petitioners that right to dress is a fundamental right since it involves freedom of expression.

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“You cannot take it to illogical ends. If the right to dress is a fundamental right, the right to undress also becomes a fundamental right... Nobody is prohibiting you from wearing the hijab. The question is about wearing it in school,” the bench told senior advocate Devadatt Kamat, who was appearing for a girl student from Udupi which turned out to be the epicentre of the original protests seeking to wear the hijab.

Kamat sought to persuade the bench that the February Government Order (GO) by the state government specifically mentioned that wearing of hijab is not a part of essential religious practice of Islam, arguing that the GO targeted only one community. The bench, however, responded: “You may not be right. Only one community wants to come with hijab or head scarf while all other communities are following the dress code.”

Kamat tried to argue that it may not be true only about one community since students also wear a ‘rudraksha’ (stonefruit worn by Hindus) or a cross in schools and colleges, and therefore the question is about showing a religious symbol in addition to wearing the uniform. “The State is required to be more generous. That’s the concept of reasonable accommodation,” he added. But the bench retorted: “Rudraksha or a cross is not worn outside but under your shirt. Nobody is asking you to take out your shirt to see what you are wearing and hence, it does not bother anyone. It is not a violation of a dress code.”

Clarifying that he is not challenging the prescription of uniform but the mandate of the state to deny fundamental rights of those wanting to wear a hijab without contravening the dress code, Kamat contended that the ban on hijab cannot be justified either as a reasonable restriction or on the grounds of public order.

He also said that only a constitution bench should hear the clutch of petitions against the March 15 judgment by the Karnataka high court, which held that wearing of hijab by Muslim women does not form a part of essential religious practice in Islam. The petitioners include girl students, women’s right groups, lawyers, activists and Islamic bodies.

“The issue is whether a student citizen in our Constitutional scheme is expected to surrender her fundamental right in lieu of access to education. The argument of the state is that you keep your fundamental rights at home when you come to school...(but) I (the petitioner students) was wearing it (the hijab) for years until some nationalist woke up and said this is anti-national,” rued Kamat.

The senior lawyer also cited various judgments from courts in UK, USA, Canada and South Africa to bring home his point that religious and cultural rights are to be respected by educational institutions.

At this point, the bench told Kamat: “How can we compare India to USA? The judgments that you are citing are based on their society, their culture. We cannot totally follow them here... no other country has diversification like our country. All other countries also have uniform law for all their citizens unlike us.”

During the 120-minute hearing, Kamat also emphasised that the concept of secularism accepted by the Supreme Court is “positive secularism”, as he quoted a verse from Upanishads that meant one God is worshipped in different names.

To this, the court remarked: “Is that statement that there is one God and different ways to achieve it accepted as true by all faiths in India? Is that a correct statement? Do all religious streams accept it since you are arguing it? Mr Kamat, our Constitution talks about secularism and not faiths.”

As Kamat added that secularism cannot mean restricting display of religious symbol of just one faith, the bench pointed out that the words “secularism” and “socialism” were not there in the original draft of the Constitution because the framers felt they are implicit and run through the spirit of the Constitution.

“In 1976, we inserted these two words although they may not be required. Secularism and socialism were always there. It was perhaps added as a political statement...we don’t know,” commented the bench.

The court will resume the hearing in the case on Thursday.

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