Legal fraternity backs setting up of constitution bench to decide Hijab issue

Following the Supreme Court’s split verdict in the hijab ban case, the legal fraternity stood up for an adjudication of the matter by a constitution bench in the wake of the complexity of the issue and crucial questions of interpretations that it involves.

Senior advocate Geeta Luthra said that the Supreme Court has raised a pertinent question regarding whether the right to practice religion can intertwine with the right and autonomy of educational institutions to decide their uniform.

“While private institutions have the autonomy to decide the uniform, public schools should look at the issue in a neutral manner. All over the world, mixed opinions and choices of women are being seen with respect to wearing the hijab. While women in Iran want the liberty of choice, women in France want to secure the right to wear the hijab. The divergence of opinion of what the girl should wear in schools makes the issue intricate and choice specific,” said the senior lawyer, warning that politicisation of the debate must be repelled.

On its part, lawyers’ body All India Bar Association (AIBA) wrote to the Chief justice of India (CJI) on Thursday, favouring a constitution bench of at least five judges, including one Muslim judge.

Dr Adish C Aggarwala, senior advocate and chairman of AIBA, said: “In the fairness of the matter, it is humbly prayed that the hijab case be referred to a larger bench as this is an important matter for all the citizens of India.” Aggarwala also pointed out that the bench did not have sufficient time to adjudicate the matter since one of the judges on the bench, Justice Hemant Gupta, was retiring on October 16.

Senior advocate Vibha Datta Makhija too agreed that a constitution bench is the more appropriate forum to decide a complex issue like this, adding that the core lies in the issue of right to female dignity.

“This is a complex issue of intersecting rights and restrictions, involving interpretation of several constitutional provisions. As such a constitution bench would be a more appropriate quorum. At the core lies the issue of the right to female dignity and individual expression guaranteed under the penumbra of Articles 21 and 19(1)(a),” the senior counsel said.

She, however, found favour with the opinion of Justice Dhulia, saying it balances the multiple guaranteed rights to life, dignity, freedom of speech and expression, equality, right to education, and right to freedom of conscience and religion, with the competing constitutional goal of secularism.

Advocate Meera Bhatia termed the hijab issue as an “extraordinary” matter, and termed the decision of the apex court to refer the case to the larger bench correct.

“This is an extraordinary matter and has taken the nation by storm. It is a correct decision to refer the Hijab matter to a larger bench,” said Bhatia, adding everyone every one should be permitted to lead life on her or his own terms.

Advocate Nandita Rao also supported Justice Dhulia’s judgment, educating women is the most important thing and anything which discourages a girl and her family from sending her to study will be counterproductive for her empowerment.

“In my view hijab is not an essential part of religion but the choice to cover one’s head is certainly part of the right to privacy, dignity and identity as held by hon’ble Justice Dhulia”, Rao said.