Hijab Case : Can Religious Clothing Be Worn In A Govt Institution In A Secular Country? Supreme Court Asks During Hearing [Day 1]

The Supreme Court, on Monday, heard a batch of petitions challenging the Karnataka High Court's judgment which upheld the ban on wearing hijab by Muslim girl students in some schools and colleges in the State.The matter was heard by the bench comprising Justices Hemant Gupta and Sudhanshu Dhulia. At the outset, Senior Advocate Dushyant Dave appearing for petitioners, requested the matter to be taken on a non-miscellaneous day, while stating that there were "substantial questions, not only constitutional issues, but questions of general importance" which would be argued and thus the submissions would be rather detailed. He stated that it was difficult to get books inside a crowded court room on miscellaneous day. Senior Advocate Rajeev Dhavan added to the request stating that the court was extremely crowded. However, the court insisted on starting the matter and it was accordingly heard on the same day at 2 p.m.Before the merits of the case were heard, Advocate Ejaz Maqbool suggested that all pleadings could be compiled into one matter, which could be dealt as the lead matter. The bench agreed to the same and opined that the said compilation could be completed in a day or two. The bench was informed that within the batch of the petitions, some petitions were filed against the interim order passed by the Karnataka High Court. The bench accordingly noted that such petitions would be disposed of as infructuous.Is wearing a headscarf an essential religious practice?Senior Advocate Rajeev Dhawan argued that as per Article 145(3) of the Indian Constitution, a constitutional issue must be referred to constitution bench. He stated that there were a large number of women involved in the issue, and the question that arose was whether these women should yield to the dress code or government and whether wearing a headscarf was an "essential religious practice". To this, Justice Gupta remarked that while wearing of the scarf may or may not be an essential practice, the question could be as to whether the government could regulate the dress code. Sr. Adv. Dhawan argued that even in the Supreme Court, there were judges wearing tilak, pagdis etc. However, Justice Gupta interjected stating that 'Pagdi' was a non-religious item and used to be worn in royal states. He stated that–"My grandfather used to wear it while practicing law. Don't equate it with religion...Our Preamble says ours is a secular country. In a secular country can you say that a religious clothing has to be worn in a government run institution? This can be an argument."Sr. Adv. Dhawan further stated that the decision of Supreme Court would be "momentous" and be looked at all over the world as Hijab was worn in many civilizations. He further argued that while earlier it had been suggested that scarf of the same colour of uniform could be worn, students were now being asked to remove scarfs in the class rooms. He also highlighted that there were inconsistent High Court orders on the issue as one order by the Kerala High Court stated that it was permitted and another by Karnataka High Court stated that it was not.Can Dress code Be Regulated?Senior Advocate Sanjay Hegde started the main arguments today. His main point was that the Court should not go into the broader questions in the case, as it can be decided solely on the narrow point whether the State Government had the power under the Karnataka Education Act to prescribe the uniform.After narrating the facts of the petition relating to Udupi PU College students to the bench, he argued that–"What does the Karnataka Education Act say? Can you make rules and give direction and can those directions run foul of other provisions of the Act? If it can be decided on the basis of the Act, then broader questions need not be gone into...College Development Committee has no legal sanctity as per Act. It includes the local MLA and politicians."He argued that the issue that arose was whether as per Section 133(2) of the Karnataka Education Act, it was mandatory for students to wear uniforms as mandated by the governing body. While continuing his argument, he asked the bench if an institution could debar someone from class for wearing a particular style of dress? He stated–"Can the education of women be made contingent on not wearing a particular dress?...Can you tell a girl, I'm sorry using a wrong phrase, a grown up woman, that you will have no control over your own concept of modesty and say you cannot wear a chunni?"Justice Gupta retorted to this line of argumentation by highlighting that different places required different dress codes. He stated–"I remember the news- a lady advocate came in a jeans and it was objected to saying you can't wear jeans. But technically can the woman say you can't bar me for wearing a jeans...If you go to a Golf Course, there is a dress code. Can you say I can wear the dress I like there?...In some restaurants, you have a formal dress code, in some you have a casual dress code."To this,...

Hijab Case : Can Religious Clothing Be Worn In A Govt Institution In A Secular Country? Supreme Court Asks During Hearing [Day 1]

Padmakshi Sharma

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