Can religious right be carried into school with a uniform: SC on hijab

The wearing of hijab may not be an essential religious practice and the question would be if any religious right can be carried to an educational institution where uniform is legally prescribed by a secular State, the Supreme Court observed on Monday as it commenced its hearing in the Karnataka hijab ban cases.

“Where is the religious practice here? Strictly speaking, it (hijab) might not be a religious practice. There may be a religious aspect but strictly speaking, this issue cannot come within the reference (before a nine-judge bench)...You may have a religious right to practice but can you take that practice to schools when there is a prescribed dress code? We can concede that you have a right to wear a head scarf or a hijab but can you carry your hijab to a school where a uniform is prescribed?” asked a bench of justices Hemant Gupta and Sudhanshu Dhulia.

The scope of judicial review in matters involving religious practices is currently pending before a nine-judge bench in the wake of a spate of practices across religions being questioned before the top court. Some of the petitioners have argued that the hijab row should also be referred to the nine-judge bench since it entails an essential religious practice and that the issue of interplay between constitutional right and public interest must be dealt with by the larger bench.

However, the bench on Monday pointed out that wearing hijab may or may not be an essential practice and that one of the main issues in the cases being heard would be about the right to a particular practice in a government institution. “Preamble says ours is a secular State, which means no religious personal practice in a government institution,” it added.

The top court further expressed a prima facie view during the two-hour long hearing that the Karnataka government did have the authority to prescribe uniforms for educational institutions under its executive powers, even as the state maintained that it has not passed any order banning hijab.

According to the Karnataka government, its February notification was an “innocuous” order that directed recognised educational institutions to prescribe uniforms, following which some colleges, including the PU College in Udupi which turned out to be the epicentre of the original protests seeking to wear the hijab, chose to ban it.

“The February government order (GO) was clear that the State will not prescribe anything but the institutions had to prescribe uniforms for their students. Some institutions chose to ban hijab. The government did not say `you wear a hijab or not wear it’. We left it to educational institutions and their orders have not been challenged before any court,” the state’s Advocate General Prabhuling K Navadgi submitted.

Asked by the bench to take a stand whether the State wants hijab banned or not, Navadagi replied that the state has left it to college development committees to take a call. “There is no prohibition of the state. The college development committees are entrusted to take a call. Some institutions banned it and some others chose to remain silent. There must be some institutions run by Islamic organisations which still allow hijab,” added the Advocate General.

The court on Monday heard preliminary submissions from both sides on a clutch of 23 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 and that the state government is authorised to prescribe uniforms in its educational institutions. The petitioners include girl students, women right groups, lawyers, activists and Islamic bodies.

While solicitor general Tushar Mehta, additional solicitor general KM Nataraj and Navadagi appeared for the Karnataka government, senior advocates Rajeev Dhavan, Yusuf Muchhala, Dushyant Dave, Sanjay Hegde and Devadatt Kamat represented the petitioners.

Earlier in the day, the court turned down Dave’s request to adjourn the hearing, on the grounds that the matter required elaborate arguments. The court posted the hearing after 2 pm and heard it till around 4 pm.

Hegde began his arguments before the bench with a proposition that the state government lacked the authority to prescribe uniforms or direct institutions to do so. He added that even if the state was held to be authorised to do so, wearing the hijab was just an addition to the uniform and young women could not be deprived of their right to access education solely on this ground.

The court, however, told Hegde that the state’s argument is not on denial of education. “They are not saying that ‘we are denying them the right to education’. They are saying -- you come in the prescribed uniform...also, we don’t think you can question their power to prescribe uniform. There are so many authorities under the rule-making power of the state,” it said.

While Hegde argued that the Karnataka Education Act did not empower the state government to prescribe uniforms, the bench retorted: “You say that educational institution cannot issue a rule but what about the State unless there is a statute which prohibits dress code. So, tell us, can a student come in minis, midis, whatever they want? Unless there is some statute that says that the state is restricted, it is always the executive power of the state that will come into play.”

As Hegde concluded his submissions, the bench adjourned the case to September 7 at 2 pm to continue its hearing.

Last week, the bench had pulled up the petitioners for seeking an adjournment in the case, observing that the request appeared to be a ruse for “forum shopping” -- an endeavour to take the matter to a different bench and another combination of judges.

A full bench of the Karnataka high court, on March 15, declared that wearing of hijab is not mandatory in Islam. It upheld the ban on the headscarf imposed by the state government in schools and colleges through a February 5 executive order which led to massive protests and counter-protests across the state and in several other cities across the country.

The high court’s three-judge bench, headed by chief justice Ritu Raj Awasthi, held that the Quran does not mandate wearing of hijab for Muslim women and that the attire “at the most is a means to gain access to public places” and a “measure of social security”, but “not a religious end in itself.

Dismissing a bunch of petitions filed by some girl students pressing wearing of hijab as their religious right protected under the Constitution, the high court also favoured a “speedy and effective” investigation into the stoking of the hijab controversy in Karnataka, suspecting some “unseen hands at work to engineer social unrest and disharmony in the state”.

In its judgment, the high court further upheld the state government’s authority to prescribe uniforms in educational institutions under the Karnataka Education Act while declaring that “adherence to dress code is mandatory for students”.