Supreme Court, Hijab, Senior Advocate Kapil Sibal
Senior Advocate Kapil Sibal submitted before the Supreme Court that a student does not forego her fundamental rights the moment she steps into the school gate [Fathima Bushra vs State of Karnataka].
Justices Hemant Gupta and Sudhanshu Dhulia are hearing a batch of pleas challenging an order of the Karnataka High Court which upheld a government order (GO) effectively empowering college development committees of government colleges in the State to ban the wearing of hijab by Muslim girl students in college campus.
The senior counsel while arguing against the High Court’s judgment highlighted that when girls wear a Hijab their entire lives, it becomes a part of their persona and cultural tradition.
“The Hijab is now a part of my persona, a part of me! You can’t destroy me. It’s a part of my cultural tradition. Does my right stop at the college gate?”
While drawing attention to the right to privacy that is a part of Article 21 of the Constitution, he emphasised that dress was at the heart of privacy, and was an expression of who one was.
It was added that the law could not prohibit expression unless it went against public order, morality or decency.
It was also pointed out that no child had refused to wear the school uniform but only wished to add a part of their culture beyond what the uniform prescribed.
“I am entitled to say that I belong to a particular culture, both as an adult and a student”, Sibal stressed.
Apart from Sibal, Senior Advocate Jayna Kothari appeared before the court and argued that the girls were being discriminated both on the grounds of their religion and gender.
She elaborated on the principle of intersectionality which was recognised by the Supreme Court not long ago.
“This is not MERELY a religious based discrimination. It is also sex.”
Senior Advocate AM Dar took the court through the verses of the Holy Quran in an attempt to refute the Karnataka High Court’s reasoning that the wearing of the Hijab was not mandatory, but directory.
“The importance of the Surah is that if it included in the Quran, it is mandatory. Not directory, like the Karnataka High Court has said.”
Senior Advocate Meenakshi Arora brought to the Court’s attention the Convention on the Rights of the Child which has been ratified by India, as well as translated into a legislation.
She submitted that the convention protects the right of children to practice their religion, and against discrimination.
In this regard, it was her submission that the State government did not have the power to make a government order against a central legislation, and the same could only be done if adequately justified.
Advocate Shoeb Alam argued that there could never be a surrender of one’s fundamental right, but only a shrinkage. It was his submission that the order required the students to choose between their right to have an education and their right to privacy.
“The impact of the government order is – I will give you education, you give me your right to privacy. The state cannot ask me to surrender my right to privacy.”