- A Supreme Court Bench comprising Justice Hemant Gupta and Justice Sudhanshu Dhulia adjudged the petitions on the Hijab case. They heard petitions over the ban of Hijab in educational institutions in Karnataka on 5 September, 2022.
- Senior Advocate Sanjay Hegde argued that it was wrong to instruct grown-up women about not having any opinion or control over the concept of their modesty. They certainly cannot be told what to wear or what not to wear.
- While Justice Hemant Gupta responded to it and said that different places require different dress codes. He further went on to give an example of advocates barred from wearing jeans in court while arguing, specific dress assigned for a golf course, or restaurant workers with formal dress codes, etc.
- Advocate Hegde opposed it saying parallels cannot be drawn between the two lines of these instances. He said, "Everything comes down to context. Today, the context is access to education in a government college. A government is funded by everyone."
- Justice Gupta retorted that the government is not funded by everyone since only 4% of people pay taxes. "No, sorry, only 4% pay income tax", said Justice Gupta.
- A special leave petition was filed against a verdict delivered by Karnataka High Court dated 15 March, 2022 which upheld the order passed on February 5, prohibiting Muslim students to wear hijabs (headscarves) in Pre-University colleges and other educational institutions.
- The apex court issued a notice to the government of Karnataka on August 29 based on a batch of petitions. Around 23 petitions were filed before the Bench, among which were writ petitions filed in the Supreme Court seeking the right to wear hijab for Muslim girl students and against the Karnataka High Court judgment that upheld the hijab ban.
- In the infamous Aishat Shifa Vs State of Karnataka SLP(C) 5236/2022 or the Hijab case, Muslim girl students were banned from wearing hijab to schools and colleges in the State of Karnataka.
- In the latest update of the case, Senior Advocate Devadatt Kamat appeared for the petitioner and contended that Article 19 of the Indian Constitution which guarantees the right to freedom of expression imbibes the “right to freedom to dress” and the reasonable restrictions under Article 19(2) does not apply here.
- He said that the petitioner was not opposed to wearing her uniform but wearing it with her headscarf as a sign of respect towards her religion. He questioned whether the headscarf violates morality or anyone’s fundamental rights or is against the interest of the State and public. No indiscipline that could be probably caused by wearing a headscarf of matching color. The petitioners merely wanted to wear an additional accessory to the uniform and did not demand on wearing other clothing apparel like a burqa or jilbab.
- Justice Gupta stated that Advocate Kamat was taking freedom of expression including the freedom to dress to an illogical extent and subsequently asked whether the right to dress included the right to undress. Kamat responded to it by quoting, “Nobody is undressing in a school. Question is wearing of this additional dress as part of Article 19, can it be restricted?”
- Kamat advanced his arguments and stated that the Central government-run schools like Kendriya Vidyalaya permitted students to wear hijab to school. The High Court judgment impugns one community and their fundamental rights to profess a religion under Article 25. Justice Gupta retorted that the reading of the order passed by the Karnataka Court is incorrect and that only one religion wants to wear religious dresses.
- Advocate Kamat said that other religion students also had religious symbols worn to schools like the rudraksha or the holy cross. Justice said that these symbols were inside the dress and not visible to others so were not indisciplinary.
- Advocate Kamat said that the issue was on the principle of reasonable accommodation and not about what is or not visible. He said that constitutional secularism is not negative where the display of religion in public is an offense. He cited a verdict from a South African court that held asking a Hindu girl to remove her nose ring for even a short period would imply that she and her religion are not welcome. He also quoted another 2015 United States Supreme Court judgment that permitted hijab to employment.
- Justice Gupta rejected the contentions and said that other nations jurisdictions cannot be compared with India as it is conservative. Kamat quoted “High Court said forcing a girl to wear hijab will militate against Article 14. Nobody is forcing a girl to wear a hijab." He further argued that if there is no restriction on wearing hijab, the question of whether hijab constitutes a religious practice or not under Article 25 of the constitution becomes irrelevant. The Bench had adjourned the case for later.
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