The Supreme Court was told on Wednesday, September 14, that the Karnataka government order (GO) disallowing the hijab on campus will spell the death knell for students desirous to take secular education, and the counsel, representing some of the petitioners, asked, “what is the degree of discipline affected by allowing someone to wear the hijab?”
Senior advocate Huzefa Ahmadi contended before a bench comprising Justices Hemant Gupta and Sudhanshu Dhulia that most of the girls wearing the hijab come from conservative families and asked what will be the natural fallout of this. He vehemently argued that the state's legitimate interest is to encourage diversity and not have uniformity in all practices. “Why should someone feel that someone's religious observances obstruct secular education or unity?” he asked.
Ahmadi argued that the state government order against wearing the hijab in schools misunderstands the concept of fraternity, and by prohibiting the hijab in schools, the state government has “virtually forced Muslim girl students out of school”. He added that there was no legitimate interest of the state in imposing a ban. Huzefa said the GO, even if it appears to be neutral, has to be struck down for running foul of Article 14 of the Constitution. He added that certain students from a community have broken the stereotype and have gone to school with a headscarf.
Huzefa emphasised, "The GO will strike a death knell for their (students') secular education" and contended that disallowing hijab would create barriers for education and fraternity. He said it would go contrary to the principle of fraternity in the preamble of the Constitution, if it is said that hijab would not be allowed.
Citing a PUCL report on the impact of the hijab ban, Ahmadi submitted that several students dropped out of school after the Karnataka High Court judgment on hijab on March 15. However, the top court expressed a reservation about the neutrality of the report.
Huzefa said, “If somebody is being provoked by girls wearing the hijab, that person should have a sense of brotherhood and fraternity.”
Earlier during the day, senior advocate Rajeev Dhavan, representing some petitioners, submitted before the top court that once it was shown that wearing a hijab is a bonafide practice then it was permitted — he cited the apex court's decision in the Bijoe Emmanuel case. Dhavan said that the conclusion of the Karnataka High Court was puzzling, as it said hijab was not mandatory due to the absence of prescription of penalties.
The bench queried Dhavan that his argument was that the courts were not equipped to decide the matter, and “if a dispute arises then which forum will decide it?” Dhavan said, “What was the dispute? Whether hijab was an essential practice?” adding that the hijab is worn all over the country, and as long as it was bonafide and prevalent, the practice must be allowed and there was no need to refer to the religious text.
On September 12, Senior advocate Yusuf Mucchala, representing petitioners in the hijab ban case, told the Supreme Court that Karnataka High Court faulted by holding that the wearing of the headscarf is not an essential practice under Islam, and that “since the court had no expertise in the filed suit, it should not have gone into the issue whether the hijab was an essential religious practice by interpreting the Quran”.
The hearing on the petitions challenging the Karnataka High Court's judgement of March 15 upholding the ban on Hijab in pre-university colleges will continue on Thursday, September 15.