Chief Justice of India D.Y. Chandrachud on Wednesday agreed to consider listing an application by Muslim students claiming they are not being allowed to wear hijab and take exams scheduled on March 9 in government colleges across Karnataka.
Advocate Shadan Farasat, for the students, urged the court to list and hear the case urgently as their academic future was at stake.
"They have already lost a year. Though they are private college students, the exams are held in government institutions. Allow them to take part in the exams," Mr. Farasat submitted.
"Why are they not being allowed to take their exams?" the Chief Justice asked.
"Because they are wearing head scarves..." Mr. Farasat replied.
A Supreme Court Bench of Justice Hemant Gupta (now retired) and Justice Sudhanshu Dhulia had delivered a split verdict in October last year on whether or not students had a fundamental right to wear hijab in government institutions.
On Wednesday, it was argued that the State authorities are counting with their prohibition of hijab in classrooms.
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On January 23, the CJI, in an earlier mention, had assured the students to list the main hijab case before a larger Bench of three judges. At that time, the students were about to have their practicals on February 6.
In the October judgment, Justice Gupta had upheld Karnataka’s prohibitive government order, saying "apparent symbols of religious belief cannot be worn to "secular" schools maintained from State funds. He had said ‘secularity’ meant uniformity, manifested by parity among students in terms of uniform.
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The judge had held that adherence to the uniform was a reasonable restriction to free expression. The discipline reinforced equality. The State had never forced students out of state schools by restricting hijab. The decision to stay out was a “voluntary act” of the student.
In his divergent opinion, Justice Sudhanshu Dhulia had said secularity meant tolerance to "diversity". Wearing or not wearing a hijab to school was "ultimately a matter of choice". For girls from conservative families, “her hijab is her ticket to education”.
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“By asking the girls to take off their hijab before they enter the school gates, is first, an invasion of their privacy, then it is an attack on their dignity, and then ultimately it is a denial to them of secular education… There shall be no restriction on the wearing of hijab anywhere in schools and colleges in Karnataka,” Justice Dhulia had held.
Justice Gupta, in his opinion, had said students need to follow the discipline of wearing the school uniform without any “addition, subtraction or modification”. A student cannot claim the right to wear a headscarf to a secular school as a matter of right. “A girl’s right to express herself by wearing a hijab stopped at the school gate”.
But Justice Dhulia countered that school was a public place. It was not correct to draw a parallel between a school and a jail or a military camp.
Published - February 22, 2023 11:54 am IST
