The prohibition imposed on Muslim students from wearing hijab in classrooms in Karnataka should not be viewed as a “simple case of discipline” but as discrimination on the ground of sex and religion, senior advocate Rajiv Dhavan told the Supreme Court on September 14.
Appearing before a Bench led by Justice Hemant Gupta for student-petitioner Aliya Assadi, Mr. Dhavan said his client was a Karate champion who chose to compete “in hijab”.
He said that in certain States, in Kerala, hijab was viewed as farz. “Across India, across the world, hijab is recognised as a valid practice,” Mr. Dhavan contended.
Justice Sudhanshu Dhulia, on the Bench, asked whether the proscription was limited to one school in Karnataka. “Then it spread to other schools... This is simply poking one aspect of the religion and saying ‘let us see if we can get this aspect of religion struck out by the courts’,” Mr. Dhavan replied.
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The court asked whether it has to go into the aspect of whether wearing hijab was an essential religious practice in Islam. Mr. Dhavan said if hijab was recognised widely as an established practice, the courts should not act as “high priests” of what was or not an essential religious practice. The courts were simply not equipped to do so.
“But if a dispute arises on that? Who will then decide?” Justice Gupta asked. Mr. Dhavan referred to the court’s decision in the Bijoe Emmanuel case, saying the court had to only see if a practice was prevalent, was established and a bona fide one.
“That is enough... You do not have to examine scholarly books to find out if it was an essential religious practice. That is outside the court’s ambit,” Mr. Dhavan said.
He pointed out that hijab is allowed in public places but banned in classrooms. The onus was on the authorities to show that their restriction was reasonable. “What public order is disturbed if a child wears hijab to her classroom?” he asked. He said it was the obligation of the authorities to have an inclusive and the least restrictive approach.
“The campaign ‘hijab must go’ amounts to massive discrimination targeting Muslim women, their right to choose,” Mr. Dhavan said. Senior advocate Huzefa Ahmadi, for another student, said the Constitution enshrined the principle of fraternity. “Fraternity means unity in diversity and not standardisation. It upholds individual human dignity,” Mr. Ahmadi argued.
He questioned the State’s legitimate interest in prohibiting hijab in classroom. “What is the legitimate State interest involved here? It is to encourage education. It is not to encourage restrictions which would increase drop-outs from school,” Mr. Ahmadi submitted.
