Hijab ban order religion neutral, neither hijab nor saffron gamcha allowed: Karnataka govt tells SC

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The Karnataka government’s decision to ban hijab in schools was a religion-neutral order and neither a saffron gamcha nor a hijab were allowed in schools, Solicitor General Tushar Mehta told the Supreme Court on Tuesday. The Top Court is hearing a batch of petitions challenging the ban on wearing hijab in educational institutions in the state for the eighth day.

Mehta, appearing from the government side, also told the court that the petitioner students are influenced by the Popular Front of India (PFI). The government also told the bench comprising of Justices Hemant Gupta and Sudhanshu Dhulia that the Karnataka High Court had accepted the arguments on the “unseen hands to engineer social disharmony” as police documents were submitted to the court.

Solicitor General Tushar Mehta also told the apex court that the sudden upsurge by the students was not their idea and that there was no issue or insistence on hijab between 2004-2021. He told the SC that a copy of chargesheet against the PFI will be submitted before the court.

During the hearing, the Supreme Court asked if the arguments could be heard keeping away the essential religious practice issue.

Senior advocate Dushyant Dave has submitted precedent judgments over the distinction between “religious practices” and “essential practices”.

Dave told the court that the hijab has been worn for centuries. He also said that as the community in one voice has accepted the practice, it should be accepted as part of the religion.

Dave also told the bench comprising of Justices Hemant Gupta and Sudhanshu Dhulia that in the guidelines, the Karnataka government rules clearly state that school uniforms are not mandatory in the PU colleges. “The 2020 rules say that some principals have imposed uniforms which are illegal. Uniforms are a burden. Many people cannot afford uniforms.”

Responding to this, Justice Gupta said, “In certain schools, there are moneyed people and poor people. Because someone is coming in a Bentley and someone is coming on foot. A uniform is a leveller. The uniform has the same fabric. Your richness and poverty cannot be made out by the uniform.”

The bench also said, “We have a very limited question of whether the headgear can be permitted along with the uniform. We have been hearing arguments for 8 days.”

Justice Gupta further said, “The parliamentary debate has the opinion/stand of one member. We have to go by the definition that was finally adopted by the Constituent assembly. Can the opinion of one member during the debate be used to interpret what the provision finally says? The assembly had 249 members.”

Dave said the debates can be relied on to see what went into making the provision.

“Women want to wear hijab. How is HC saying Constitutional rights are violated by the hijab? Whose right? The other students’ right? Or the school’s right?” Dave asked.

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