Can right to practice religion be taken to institutions having prescribed uniform? asks SC on hijab row

The Supreme Court on Monday raised question over the argument that wearing hijab is a part of essential religious practice, asking that even if it is assumed so, can it be taken to the educational institutions of a secular country where a particular dress or uniform is prescribed.

"You may have a religious right to practice whatever you want to practice. But can you practice and take that right to a school which has uniform as a part of dress you have to wear? They are not denying right to education, what they are saying as the state is you have to come in the uniform," a bench of Justices Hemant Gupta and Sudhanshu Dhulia said.

During the arguments, the bench observed that if the Karnataka Education Act does not permit prescribing dress code, then the question would be whether the Act prohibits dress code.

"Can the students come in minis, midis, whatever they want," the bench observed.

The court also did not seem convinced with a contention to link 'hijab' with 'pagdi' or 'Tilak'.

Read | Hijab ban: 16% Muslim girls from Mangalore University colleges drop out

The court was hearing arguments against the Karnataka High Court's March 15 judgement that had upheld the validity of state government's order allowing colleges to prescribe dress code in Pre University colleges.

Karnataka's Advocate General Prabhuling K Navadgi submitted that the state government has issued an "innocuous" order, which allowed the educational institutions to prescribe their dress code.

"We have left it to the institution concerned. The government purposefully left it to the college development council. Some colleges decided not to prohibit wearing hijab in Udupi itself," he pointed out.

The court then asked if minority institutions, including of Christian colleges, were allowed to prescribe their own uniform and if they allowed wearing hijab.

Navadgi responded that to his knowledge, at least two colleges in Udupi allowed hijab for the students.

Additional Solicitor General K M Nataraj, also representing Karnataka, contended that the issue was confined to maintaining discipline in colleges but the petitioners unnecessarily expanded. "Someone under the guise of religious practices wanted to violate it (discipline), he said.

In his arguments, Hegde sought to link wearing hijab with modesty and dignity of girls.

"Most girls colleges prescribed to wear Salwar Kameez and Dupatta. Can you ask grown woman that you cannot wear a chunni on your head? Can you control modesty of woman?," he asked.

"Every public place has a dress code. Lets take for example a golf course? Can a person say I won't follow dress code but still have access," the bench then shot back.

The counsel, however, said the executive under the rule making power of the Karnataka Education Act, cannot violate the fundamental rights.

"Can anyone wear minis, midis.. anything? You are saying Act doesn’t prescribe dress code and does not debar prescription either," the bench said.

Earlier, senior advocate Rajeev Dhavan, also for the petitioners, asked the court to refer the matter to the Constitution bench, saying the decision of the Supreme Court would be momentous and would be looked by many countries. He also said there were inconsistency between the views of the Kerala and the Karnataka HCs.

He also said there have been judges wearing 'Tilak' and 'pagdi'. The court, however, said 'pagdi' was a non-religious item.

Dhavan said the issue raised before the court concerns millions of women, who comply with the dress code in educational institutions but also want to wear hijab.

"What this court will rule, the whole world will listen," he said, adding the apex court's decision in the matter will be of momentous importance.

"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," Justice Gupta said.

The arguments, which remained inconclusive, would continue on Wednesday.

(With PTI inputs)