Posi%ve secularism is allowed: student to SC

in hijab case
State should show ‘reasonable accommoda3on’: counsel
Krishnadas Rajagopal - NEW DELHI Law optional by De Facto IAS @DeFactoLaw

India believes in ‘posi3ve secularism’ based on tolerance of all religious faiths and not
‘nega3ve secularism’ followed in countries like France which holds that display of
religion in public is offensive, Aishat Shifa, a student from Karnataka who has challenged
the ban on wearing hijab to school, told the Supreme Court on Wednesday. Ms. Shifa’s
lawyer, senior advocate DevadaI Kamat, said all religions are different paths to God.

“But do all religions accept this? That there is only one God… Is that stream of thought
accepted by all religions?” Jus3ce Hemant Gupta, leading Bench comprising Jus3ce
Sudhanshu Dhulia, asked.

Mr. Kamat replied that the Cons3tu3on itself says that all religions have to be treated
with equal respect. He said the Supreme Court has also held in the Aruna Roy judgment
that there should be no discrimina3on on the ground of any religion.

The senior lawyer said the State should show ‘reasonable accommoda3on’ of Muslim
students’ right to wear hijab to school as a part of her expression, religion and dignity. “If
you say the right to dress is a fundamental right then the right to undress also becomes
a fundamental right…” Jus3ce Gupta remarked.
“No one is undressing in school, My Lord,” Mr. Kamat replied. He referred to a South
African judgment which said that display of religious and cultural prac3ces in
educa3onal ins3tu3ons should treated as a “pageant of diversity”.

The State can only restrict her right in three circumstances, Mr. Kamat noted. One, to
protect public order, morality and health. Two, to protect another fundamental right.
Three, if such a restric3on is authorised by a law made to regulate or restrict any
economic, financial, poli3cal or secular ac3vity which may be associated with religious
prac3ce or to provide for social welfare and reform”.

“Secularism does not mean that students of only one faith are banned from their
displaying their religious iden3ty,” he argued. At one point, the court asked Mr. Kamat
how quo3ng foreign judgments would help his case in the Indian context.

“Their judgment came in the context of their socie3es. We are a conserva3ve society,”
Jus3ce Gupta said. “But let us allow good things to flow, as the Vedas say,” Mr. Kamat
replied.