[Hijab row] Can students come in minis, midis or whatever they want: Supreme Court to petitioners

In the appeals challenging the ban on wearing of hijab in government colleges in Karnataka, the Supreme Court on Monday asked the appellants whether students can come wearing whatever they choose to in a government institution which has a prescribed uniform [Fathima Bushra vs State of Karnataka].A Bench of Justices Hemant Gupta and Sudhanshu Dhulia also remarked that the Karnataka government's order allowing college development committees to prescribe uniform did not seem to violate right to education."You say educational institution cannot issue a rule but what about the State unless there is a statute which prohibits dress code. So tell me can a student come in minis, midis, whatever they want," Justice Gupta asked during today's hearing.The bench said that while every person has the right to practice religion of his/ her, the issue is whether the same can be taken inside an education institution which has prescribed a dress code."You may have a religious right and can you take that right within an educational institution where an uniform is prescribed. You may be entitled to wear the hijab or scarf, can you carry the right within an educational institution which prescribes uniform. They are not denying right to education what they are saying as State is you come in the uniform," the bench remarked.The remarks were made after hearing Senior Counsel Sanjay Hegde, who was appearing for one of the appellants in the case.The hearing in the case will continue on September 7 at 2 pm..Background.The Supreme Court had last week issued notice to the State of Karnataka in a batch of appeals challenging a Karnataka High Court verdict that effectively upheld the ban on wearing hijab in government schools and colleges.The Karnataka High Court had on March 15 upheld a Karnataka government order (GO) effectively empowering college development committees of government colleges in the State to ban the wearing of hijab (headscarves) by Muslim girl students in college campus.The petitioners - Muslim girl students from various colleges in Karnataka - had approached the High Court after they were denied permission to attend classes on account of wearing hijab.A three-judge Bench of then Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and JM Khazi held that:- Hijab is not a part of essential religious practices of Islam;- Requirement of uniform is a reasonable restriction on the fundamental right to freedom of expression under Article 19(1)(a);- The government has the power to pass the GO; no case is made out for its invalidation.One of the pleas before the top court argued that the High Court "failed to note that the right to wear a Hijab comes under the ambit of ‘expression’ and is thus protected under Article 19(1)(a) of the Constitution."It also contended that the High Court failed to take note of the fact that the right to wear Hijab comes under the ambit of the right to privacy under Article 21 of the Constitution of India.With regard to uniform, the plea said that the Karnataka Education Act, 1983, and the Rules made under the same, do not provide for any mandatory uniform to be worn by students..Arguments today.During the hearing today, Senior Counsel Rajeev Dhavan said that the case raises an important question of whether hijab is "essential" to Islam or not. "The case delves with a constitutional question which this case has not dealt with earlier. This deals with a significant question if hijab is essential to Islam," he said."Can you say that you want to wear a religious thing in a government educational institution. Our constitution says ours is a secular country and can in a secular country you say that a religious clothing has to be worn in a govt run institution. this can be an argument" Justice Hemant Gupta asked."When there is a prescribed code then can turban be worn? Look around you milord.. in court 2 there is a picture of judge wearing pagdi," Dhavan responded. "Pagdi is not religious. My grandfather used to wear it while practicing law. Don't equate it with religion," Justice Gupta replied.The issue affects education of millions of Muslims girls, Dhavan said. He further said that the matter should be referred to a larger bench since the case involves a substantial question of law."As per Article 145(3) deals with minimum number of judges who can hear a substantial question of law. Here the question is can the right of religious clothing be reconciled with uniform," he submitted.He also contended that the whole world is watching the Supreme Court of India and its verdict in this case."It was suggested that scarf be of same colour of uniform, Even in this court some women are wearing. Now in schools can they asked be to removed it? What this court will rule the whole world will look at it. Hijab affects women across the country and globe," Dhavan contended.Dhavan also pointed how there are inconsistent orders on this issue by different High Courts."There are two inconsistent High Court orders. One by Kerala High Court and one by Karnataka High Court where one says hijab permitted and one says its not. What the Indian Supreme Court holds in this regard will be very important," he argued..Senior Counsel Sanjay Hegde appearing for another appellant contended that the GO is contrary to the Karnataka Education Act. "What does Karnataka Education Act say? Can you make rules and give direction and can those directions run foul of other provisions of the Act," he asked.He then drew the attention of the Court to Section 133(2) of the Karnataka Education Act."Please look at Section 133(2) of the Karnataka Education Act and whether is it mandatory for students to wear uniforms as mandated by the governing body of an institution," he said."So it is upto college Committee or Board of supervisors?" Justice Dhulia asked."In private colleges, board of supervisors and government colleges it is as per Development Committees," Hegde replied.He then went on to submit that the incident was a local one restricted to Udupi but instead of ensuring that it remains confined to that place, it was blown out of proportion due to politics."Udupi should not be proud of this. It blew out of proportion due to dynamic of politics....Can you deny education to women contingent upon their attire or clothes they wear thus keeping it religion neutral and in the realms of the Act," Hegde asked.Hegde said that the case should be decided based on statute alone without entering into Constitutional issues."If a case can be decided on purely statutory grounds without entering the constitutional scheme, it is a better approach," he said.He then asked whether someone be excluded from college because that person does not adhere to uniform code."Most of the colleges prescribe salwar, kameez and dupatta. So now can we tell a grown woman that you cannot have control over your modesty or place it above your head. Can this be done in Patiala? Perhaps no," Hegde contended."Once a lady lawyer appeared in Supreme Court wearing a jeans and she was asked not to. She can also say I will wear what I want," Justice Gupta said."Can anybody tell her you will not access the court because attire," Hegde said."Mr. Dave will tell us that a dress code is there for a golf course as well," said Justice Gupta. "That is a private party," Hegde responded."It is not a private property," said Justice Dhulia."It can also be the norm or rule that shorts are not allowed in a restaurant," Justice Gupta stated."This is about access to education, the education for which all of us pay taxes," Hegde persisted."Sorry only 4 percent pay taxes," the bench retorted."Indirect taxes we all pay, but I would not join issue here," Hegde responded."You say educational institution cannot issue a rule but what about the State unless there is a statute which prohibits dress code. So tell me can a student come in minis, midis, whatever they want," Justice Gupta demanded.Hegde contended that the GO was not in tune with the Karnataka Education Act."The GO says no attire can be worn which shows religion being professed. The GO is contrary is object and purposes of the act and it cannot be used to give a direction etc. Even under Rule 11A uniform prescribed must be in consonance with the mandate of the Act," he submitted."What is your argument," Justice Gupta asked."When the legislature has not specified anything on uniform in the Act, then GO cannot create a new set of disabilities and cannot take away right to attend schools and college," Hegde summed up."So you are saying rules cannot be issued to make uniforms uniform? I understood your argument that statute does not have anything on the uniform," Justice Gupta said."But you cannot question the power of them to frame the uniform," Justice Dhulia weighed in.Hegde proceeded to highlight how the Sabarimala matter was referred to a larger bench and sought similar direction, stating that the issue involves questions relating to the scope and interpretation of Article 25."Where is religious practice here," the bench queried."There are Quranic verses," Hegde said. "Strictly speaking this does not come under this particular reference," Justice Dhulia said."You may have a religious right and can you take that right within an educational institution where an uniform is prescribed. You may be entitled to wear the hijab or scarf, can you carry the right within an educational institution which prescribes uniform. They are not denying right to education what they are saying as state is you come in the uniform," Justice Gupta remarked. "But chunni is there as uniform," Hegde replied."Chunni is used to cover shoulders. Please don't compare chunni to hijab. Sikh women wear it to cover head in gurudwara," the bench responded..Additional Solicitor General KM Nataraj, appearing for the Central government, then commenced his arguments.He said that the only issue is discipline in an institution and they don't want to follow it."How is hijab violating discipline of institution?" Justice Gupta asked.The ASG said that they "cannot violate the school uniform code in the garb of religious rites being violated."Karnataka Advocate General (AG) Prabhuling Navadgi then explained the background which led to the GO."School authorities wrote to us seeking guidance since after Hijab students wore bhagwa shawls and which then led to unrest in educational institutions. This is the background of the GO," he explained.He said that the State was cautious not to prescribe any uniform. Rather it kept it open for each institution to do so. "State was cautious not to prescribe any uniform but kept it open for every institution to prescribe an uniform. Some institutions have banned Hijab. But challenge is to GO. But here govt did not interdict any right. We only said follow institution rule," he submitted.The bench then asked whether a minority institution still has the freedom to allow hijab."Yes absolutely. They can permit and there is no government interference and government did not cautiously want to interfere," AG Navadgi said."What about government institutions," the bench queried. "The college development committees are entrusted to take a call. some have taken order to not allow hijab like the Udupi college and that is not under challenge here," the AG replied."Are the christian run schools allowing hijab," the bench further asked."No they are not allowing," the AG said."They should submit all this in a counter affidavit and since they are not filing it they cannot raise it," Hegde said..[Follow our coverage of today's hearing].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.