Hijab Row: Is Karnataka HC Judgement From 'Majority Perspective'? What SC Has Said So Far

Criticizing the judgment of the Karnataka High Court that upheld the Government ban on hijab, senior counsel Colin Gonsalves today said that the judgment of HC was from the perspective of the majority community where ‘the minority view is seen very partially’. While presenting his case in front of the SC bench of Sudhannshu Dhulia and Justice Hemant Gupta, he added that it was very hurtful to see the way HC linked Hijab to disorder, chaos and sectarianism. 

Bringing in the comparison between Sikh and Muslim religious practices he argued, “You never tell a Sikh boy, to take off your turban. It is central to his religion. It is the same intensity and same religiosity for a Muslim girl regarding hijab.” In reference to the Aruna Roy judgment that talks about the importance of teaching different religions, he argued that the best way for the students to learn each other’s religions would be their mingling together upholding different identities. He also emphasized on how such judgments commission the idea that there is something wrong about the religion of Islam. 

Advocate Kapil Sibal during his submission refers to a RTI response obtained by Deccan herald that shows 145 out of 900 Muslim students in Dakshina Kannada have taken transfer certificate. On being asked by the bench that whether the classes were over, Sibal responded, ‘No. Before completion of class and it is very disturbing. National impact of the order can be far reaching.” 

Putting aside the arguments on essentiality of the practices, senior Prashant Bhushan submitted that he would argue the case on the basis of Article 14 and Article 19. 

The SC been hearing a batch of 23 petitions challenging the ban on hijab in Karnataka. Some of them are special leave petitions that challenge the Karnataka High Court verdict that upheld the state government order on prohibition of hijab in the educational institutions. 

The court arguments starting from September 5 have passed through several major contentions. The issue of comparison with Sikh practices while came up several times, the test of essentiality, right to dress and the right to education also added flesh to it. Here, we would look into the key arguments by the counsel and observations of the court to understand the ongoing case better.  

September 14: Are Girls forced to Wear Hijab?  

Referring to the submission of the appellants that several parents may have withdrawn their wards from the public schools and may have put them to Madrassas as the fall out of HC judgment, the SC bench on Sept 14 asked whether Hijab is forced on the girl students.  “Is this your argument that the girl students don’t want to wear the hijab, but they are being forced to wear?”, Justice Dhulia asked senior advocate Huzefa Ahmedi. In response, the senior counsel said what she meant was different. “My argument is that it is very possible that in a conservative family system, the parents may then say that please then don’t go to school, go to a madrasa. That will be the fallout. And this is the elephant in the room which can’t be ignored”, Ahmadi added.  

The bench asked the counsel if she can produce authentic data to prove that the HC judgment in reality resulted in drop outs of girl students. Showing the latest PUCL reports that contain testimony of several students, she told the court that since the HC judgment around 17000 students have abstained from appearing in examination. 

September 8: Don’t Compare Kripan and Hijab 

In the early stages of hearing the SC asked the petitioners to not compare Kripan and turban of Sikhs with the Hijab. Upholding that Sikhs have the constitutional rights to keep Kripan, Justice Hemant Gupta said, “Don’t compare practices.” He also referred to the embedded culture of the country that statutorily contains the requirements of the Sikh culture. 

As advocate Nizamuddin Pasha tried to draw references from France and Austria, Justice Gupta told, “We are Indians and want to be in India.” 

However, continuing his arguments Pasha explained that the Karnataka HC misread the footnotes and hijab is not a ‘recommendation’; rather is an ‘essential’ practice in Islam. Another counsel Devadatt Kamat presented that even if the practice is not essential, state can’t restrict it. 

September 7: ‘Will Right to Dress also mean Right to Undress?’ 

While hearing the arguments of advocate Kamat pertaining to 19 (1)(a) and the right to dress, the bench asked, “Will right to dress mean right to undress also?”. In response, Kamat said that nobody was undressing in schools. Pointing out that it is not right for some to wear uniform and for others to wear a scarf, the bench put, “The question is nobody is prohibiting you from wearing Hijab. You can wear it wherever you want. The only restriction is in the school. We are only concerned with that question”. 

As Kamat presented a case study from South Africa where a girl was allowed to wear nose pin, the court observed that Mangalsutra is a religious thing but ‘not the nose ring’. Kamat during his arguments used the violation of Article 19, 21 and 25 (freedom of speech and expression, right protection of life and personal liberty and freedom to practice religion) by the Karnakata Government and argued for the referencing of the case under Article 145 (3) that might bring the case to a bench of at least five judges that could decide on the crucial legal cases related to constitutional interpretation, or involving substantive questions of law. 

The SC will resume the hearing from Monday when senior advocate Dushyant Dave will present his case.