Bhushan : It becomes discriminatory because you have only banned the hijab. You have not banned other religious markers like pagdi for Sikhs, tilak for Hindus, cross for Christians. You have singled out hijab, which is a Muslim identity.
Bhushan : If the rationale is to erase religious markers from school, then you have to proscribe all religious expressions.
Bhushan : Lets assume, law gives them right to impose a dress code. But it has to be justified on one of the grounds in 19(2).
Justice Gupta : We have understood your argument.
Bhushan : Strictly speaking, a school cannot restrict entry for not wearing a dress. A private club can. For eg, a golf club. But a public educational institution, particularly a govt institution, strictly speaking cannot impose a dress code.
Justice Gupta : So your submission is that govt schools cannot have a uniform?
Bhushan : Yes, but even if they can, they can't restrict hijab.
J Dhulia : The rules say they have power to prescribe uniform. Hijab is different.
Bhushan : I will not argue on Essential Religious Practice. I felt it was not necessary for the petitioners there to raise Essential Religious Practice argument. I will argue on Article 14, 19.
Sibal : See the national impact of upholding such an order. Some other State can follow. I don't want to make a political argument. But the national impact can be very far reaching.
Sibal concludes.
Advocate Prashant Bhushan now makes submissions.
Justice Dhulia asks if the TCs were taken after completion of class.
Sibal : No, before completion of class. And it is very disturbing.
Sibal : And all the 900 Muslim girls may not be hijab wearing. So if you take the percentage out of hijab wearing girls, it is more.
The severe fall out of the GO is the drop out of Muslim girls. According to RTI reply obtained by Deccan Herald 145 out of 900 Muslim girls in Dakshina Kannada took transfer certificates. And it is very very disturbing.
Sibal : The consequence of depriving young girls is depriving them of fundamental rights of access to education, privacy, dignity.
"our tradition teaches tolerance; our philosophy preaches tolerance; our constitution practices tolerance; let us not dilute it" - Sibal quotes from Bijoe Emmanuel case.
Sibal raises the point that hijab is also a cultural right protected under Article 29.