Hijab is a Muslim woman’s self-expression. She cannot be compelled by the state to shed her persona at the gates of her college, senior advocate Kapil Sibal told the Supreme Court on Thursday.
“As Polonius said in ‘Hamlet’, ‘clothes maketh the man’. Wearing hijab is an expression of what you are, where you are from, who you are. It is an expression of the self,” Mr. Sibal argued before a Bench of Justices Hemant Gupta and Sudhanshu Dhulia.
The senior counsel, appearing for a student-petitioner against Karnataka’s ban on wearing hijab in classrooms, said the Supreme Court should refer the case to a Constitution Bench, which should in turn first decide whether “wearing a dress is self-expression, which lies both at the heart of the fundamental rights of privacy and freedom of expression”. Hijab can be given the same protection as Sikh turbans and kirpans. Senior advocate Dushyant Dave too pushed for the court to refer the case to a Constitution Bench.
The petitioners were responding to a repeated question from the Bench as to “where is your right to wear a hijab to school”.
“Privacy and dignity is attached to your person and not to the place you go to… A convict does not shed his fundamental rights at the gates of the prison…”, advocate Shoeb Alam, for a student, said.
Mr. Alam said the state could not “barter” one fundamental right for the other. “The state cannot say I will give you education and in return you surrender your privacy, lay it on my doorstep. The school or the state can have no say to what extent I should clothe myself to feel safe. It is a matter of choice, of my discretion,” he contended.
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Religious identity
Advocate Prashant Bhushan said the hijab, has over the years, acquired a religious identity, protected under Article 25 of the Constitution.
Advocate Thulasi K. Raj, for a petitioner, argued that state action motivated by the prejudice and patriarchal notions amounted to gender stereotyping.
“Discrimination on the ground of religion does not require a threshold as high as essential religious practice,” senior advocate Jayna Kothari submitted. The proscription against hijab in schools was both a religion and sex-based discrimination. Senior advocate Meenakshi Arora said the ban highlighted religious intolerance with school-going children at the centre of the controversy.
Senior advocate Colin Gonsalves said the Karnataka High Court’s observations overturning a Muslim student’s right to attend classes in hijab were “hurtful”. “The High Court said in schools there are no individual rights… The High Court said such ‘qualified spaces’ by their very nature repel the assertion of individual rights to the detriment of their general discipline and decorum. The use of such obscure terms like ‘qualified spaces’ conclude that constitutional and fundamental rights are somehow absent and are at a lower pedestal in schools, war rooms and defence camps,” Mr. Gonsalves submitted.
He said the High Court judgment gave the impression that “order” in schools was somehow threatened by a girl wearing a hijab.
Justice Dhulia wondered from where the concept of ‘qualified spaces’ came from.
“No child wearing hijab is saying I will not wear the school or college uniform. Their hijab symbolises the autonomy of the mind by giving expression to the autonomy of the body. They are saying ‘hijab is a part of me, part of my persona, my cultural tradition… Does that right stop at the college gates?” Mr. Sibal asked the court.
