Supreme Court reserves its hijab verdict

Updated on Sep 23, 2022 07:14 AM IST

During the proceedings, the petitioners implored the bench to test the February 2022 order of the Karnataka government on the anvil of violation of a spectrum of fundamental rights, especially those relating to religion, culture, privacy and education.

Students outside a college after being denied entry for wearing hijabs, in Karnataka’s Chikmagalur on February 21. (PTI)
Students outside a college after being denied entry for wearing hijabs, in Karnataka’s Chikmagalur on February 21. (PTI)
By, Hindustan Times, New Delhi

Following a marathon hearing of 10 days, the Supreme Court on Thursday reserved its verdict on a clutch of petitions against a Karnataka high court judgment, which held wearing of hijab by Muslim women is not mandatory in Islam and that the state government was authorised to enforce uniform in educational institutions.

“We have heard you all. Now, it is time for us to do our homework,” remarked the bench of justices Hemant Gupta and Sudhanshu Dhulia while drawing curtains on the hearing.

Also Read| Hijab campaign instigated by PFI: K’taka govt to apex court

While there is no indication on when the judgment will be delivered, it should come out before October 16 when justice Gupta demits office. If the two judges differ with each other in their final opinions, the case will be sent to a three-judge bench.

The extensive hearing in the case witnessed almost two dozen lawyers arguing over a spectrum of issues. While the petitioners challenging the high court order covered in their arguments the right to practice religion, freedom to dress as a matter of expression and identity, right to access education and alleged unreasonableness of the state’s mandate, the Karnataka government maintained throughout the proceedings that their circular to enforce uniform was religion-neutral and aimed only at promoting uniformity and discipline.

Senior advocates Rajeev Dhavan, Kapil Sibal, Dushyant Dave, Salman Khurshid, Huzefa Ahmedi, Colin Gonsalves, Meenakshi Arora, Sanjay Hegde, AM Dar, Devadatt Kamat and Jayna Kothari argued for the batch of girl students, women’s right groups, lawyers, activists and Islamic bodies. Advocates Shoeb Alam, MR Shamshad and Nizam Pasha also assisted the bench on behalf of some of the petitioners.

During the proceedings, the petitioners implored the bench to test the February 2022 order of the Karnataka government on the anvil of violation of a spectrum of fundamental rights, especially those relating to religion, culture, privacy and education.

At the same time, most of the petitioners urged the top court to steer clear of the controversy as to whether wearing of hijab formed an essential religious practice or not. Attacking the March 15 high court judgment for ruling that hijab is not an essential religious practice in Islam, the petitioners contended that a court cannot be an arbiter of religion and that interpreting Quran or its verses is outside the expertise of a court of law.

A lot of emphasis was also laid on the 2017 right to privacy judgment to highlight that identity, dignity and self-determination are inalienable rights of an individual and thus, a girl student cannot be compelled to surrender her rights at the school gate. Alam asked if the state government sought to barter dignity with access to education.

The source of power to enforce a dress code was also questioned by the petitioners, arguing the state had no legit authority to mandate uniform, adding the February circular did not clarify whether the restriction against hijab was in the interest of decency, health or public order. Several lawyers also demanded the case be referred to a nine-judge bench where issues relating to the scope of judicial review in matters of faith are currently pending.

The state government was led by solicitor general (SG) Tushar Mehta. Additional solicitor general KM Nataraj and Karnataka’s advocate general Prabhuling K Navadgi also argued in support of the high court judgment.

The SG began by claiming that the controversy over hijab was manufactured by Popular Front of India (PFI) to trigger a social unrest, and added that enforcement of uniform cannot violate a legal right, much less a fundamental right. According to Mehta, the state government did not touch any religious aspect but made uniform mandatory through a February circular in the interest of unity, equality and discipline. He added that for a practice to be proved as an essential religious practice, a party must establish it is so fundamental and compelling that following a religion is not possible without it.

ASG Nataraj, on his part, underlined that discipline in school is the only issue involved and a discussion on any other aspect is an unnecessary diversion. He contended that enforcement of a dress code is imperative for promoting unity in educational institutions and that the state seeks to restrict all symbols of religious observances in the schools.

Arguing on the dominant effect of the February circular, state’s advocate general Navadgi argued that the foundation of the government order was to mandate uniform, which was completely permissible under the statutory authority, and therefore, any claim of incidental violation of a right must be established fully. He also said that everything mentioned in the Quran cannot become an essential facet of religion.

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