Chief Justice of India D.Y. Chandrachud on Friday, March 3, 2023, said he may “create a Bench” to hear the hijab ban case from Karnataka, though not actually zeroing in on a date of hearing.
The CJI initially assured the case would be listed on March 17. But the lawyer who mentioned the case said the students were having their exams on March 9, and the court needed to hear the case before that date. The students had missed one year and this was the second year of studies and exams.
The CJI reminded the lawyer that she was mentioning the case on the last day of working before the Supreme Court closes for Holi vacations. The next working day is March 13.
The lawyer said the case had been mentioned repeatedly before the court for early listing.
“In fact, it was mentioned 10 days back,” the lawyer said.
“I will create a Bench,” the CJI replied.
“But the exams are on March 9, in five days” the lawyer pressed.
“I can’t answer your questions. We will list the case,” the Chief Justice said.
On February 22, advocate Shadan Farasat, for the students, had 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 had 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 the 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.
On January 23, the CJI, in an earlier mentioning, 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 the 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.
The judge had held that adherence to uniform was a reasonable restriction to free expression. The discipline re-inforced 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”.
‘Invasion of privacy’
“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 schools were public places. It was not correct to draw a parallel between a school and a jail or a military camp.