The Supreme Court on Wednesday agreed to hear next week a batch of pleas challenging the orders of the Karnataka High Court wherein it had held that wearing the Hijab is not an essential religious practice and hence, the same cannot be permitted in educational institutions.
The top court’s decision came after advocate Prashant Bhushan mentioned the matter before the bench headed by Chief Justice of India NV Ramana and comprising Justices Hima Kohli and Krishnamurari.
“Two benches are not functioning. Problem of distribution is there. Let us see some time, it’ll come next week. List next week before app bench,” the bench ordered.
The batch of petitions challenging the orders of the Karnataka High Court had alleged that it has erroneously stated that the practice of wearing the Hijab may have something to do with culture at the most but certainly not with religion.
The appeals had also said that the high court has erred by observing that conscience is by its very nature subjective and that whether the petitioners had the conscience of the kind and how they developed it are not averred in the petition with material particulars.
In its orders passed in March this year, the Karnataka High Court, while turning down the pleas seeking permission to wear Hijab inside educational institutions, observed that even the Quranic injunctions don’t mandate the covering.
“The Holy Quran does not mandate wearing of hijab or headgear for Muslim women. Whatever is stated in the sūras, we say, is only directory, because of absence of prescription of penalty or penance for not wearing hijab. The linguistic structure of verses supports this view. This apparel at the most is a means to gain access to public places and not a religious end in itself. It was an enablement and not measure of women; a figurative constraint,” said a three-judge bench headed by Chief Justice Rituraj Awasthi.
The bench also comprising Justices Krishna S Dixit and JM Khazi further quoted Dr BR Ambedkar to say that Hijab or any kind of similar practice may hinder the process of emancipation of women in general and Muslim women in particular.
“What the Chief Architect of our Constitution observed more than half a century ago about the purdah practice equally applies to wearing of hijab. There is a lot of scope for the argument that insistence on wearing of purdah, veil, or headgear in any community may hinder the process of emancipation of woman in general and Muslim woman in particular,” it said.
The court further held that this militates against the constitutional spirit of “equal opportunity”, “public participation” and “positive secularism”.
“Prescription of school dress code to the exclusion of hijab, bhagwa, or any other apparel symbolic of religion can be a step forward in the direction of emancipation and more particularly, to the access to education. It hardly needs to be stated that this does not rob off the autonomy of women or their right to education inasmuch as they can wear any apparel of their choice outside the classroom,” the order read.
In a setback to Hijab-clad women, the Karnataka High Court maintained that ‘Hijab is not an essential religious practice’ of Islam. Dismissing the plea, the HC noted that the ‘uniform is a reasonable restriction’ levied by the educational institution.
Six female students who were not allowed to wear Hijabs inside Kundapura college had moved the HC regarding the case.
Noting that the state government has the power to issue a Government Order, the court dismissed all writ petitions.
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