Sanjay Hegde, one of India’s foremost Supreme Court lawyers who is, additionally, the lawyer for the Muslim girls from the Udupi Pre-University College who have petitioned the Karnataka high court, says that if someone in all conscience believes something is integral to their faith, then judges must accept that.
Hegde made this point when asked if the Karnataka hijab ban were to go to the Supreme Court and judges were to apply the Shirur Mutt judgment of 1954, which ruled that religion covers all beliefs and practices “integral” to a religion, how would they decide whether the hijab is integral to Islam or not? In some Muslim countries like Kosovo, Azerbaijan, Tunisia and to some extent Turkey the hijab is banned in schools, universities and government buildings. In other Muslim countries like Indonesia, Malaysia, Morocco, Brunei, Maldives and Somalia it’s optional, not mandatory. However, in Muslim countries like Iran and Afghanistan, the hijab is required by law.
At the very start of the interview, Hegde began with a disclaimer. He said, “I am not going to argue what I have said in court.” He said he simply wants to clarify the issues for the audience. However, he explicitly said that girls do have a fundamental right to wear the hijab. The issue is whether going into a classroom makes a difference.
In a 33-minute interview with Karan Thapar for The Wire, Sanjay Hegde discussed in detail two fundamental and key questions that underlie the present dispute in Karnataka. First, do Muslim girls have a fundamental right to wear a hijab in classrooms and would it breach Articles 25 and 14 if this is denied to them? And, second, do schools have a right to insist their prescribed uniforms are worn by all students and if the hijab is not part of it, it cannot be worn?
The interview went into considerable detail exploring earlier but conflicting high court judgments, including the Bombay high court of 2002, the Kerala high court of 2015 and 2016 as well as another Kerala high court judgement of 2018. Another large part of the discussion is about the applicability of the Supreme Court’s 1954 Shirur Mutt judgment as well as how judges will decide and, indeed, whether they should be the ones to decide that the hijab is integral to Islam.
The interview also goes into detail about whether schools have a right to scrupulously enforce their uniform regulations. The discussion goes into the question of whether on this issue, minority and private institutions are different to government-run and owned institutions. Hegde pointed out that there is a substantial difference between a convent or a missionary school disallowing the hijab and a government-owned Pre-University College doing the same.
The interview also raised the issue that if the hijab is banned, should not the same institution disallow Hindu students wearing large and very obvious Shaivite or Vaishnavi tikkas on their foreheads or red-mouli religious threads on their wrists?
Finally, the interview raises the question does the Karnataka Education Act apply to the wearing of hijabs and can it be said, as the Karnataka Education department has attempted, that the hijab disturbs equality.
Hegde also clearly and explicitly answers the question when did this controversy arise? He unequivocally states that the wearing of hijabs was permitted for years in Karnataka colleges but problems first arose in September and then escalated in December. This explicitly contradicts Karnataka education minister, B.C. Nagesh, who has claimed that hijabs were not worn in earlier years and girls only began doing so in December.
Right at the end, Hegde is questioned about how he responds to the Karnataka high court instruction that till the court decides the matter, religious attire should not be worn in classrooms and that means the girls have been told not to wear the hijab. However, Hegde explicitly and scrupulously declined to answer this question saying that silence and discretion are the better part of valour and judgement.
Rather than summarise Hegde’s answers, this precis has, instead, deliberately chosen to indicate the areas where he was questioned and the subjects on which the discussion happened. This is because Hegde is one of the critical lawyers arguing the matter before the Karnataka high court and we do not want to paraphrase him. It’s better that you should see and hear his answers for yourself and get his meaning directly from his lips.
