New Delhi: Wearing a hijab — a headscarf rather than a burqa that covers the full body — is an essential part of the Islamic religion, is a facet of the right to privacy recognised by the Supreme Court, and is protected by right to freedom of expression under Article 19 (1) (a) of the Constitution, the Karnataka High Court was told Tuesday.
Challenging the Udupi Women’s PU (pre-university) College’s December 2021 directive to ban the wearing of hijabs within the premises, a Muslim student made the submission before a bench of Justice Krishna S. Dixit. The college has also prevented the petitioner and other female Muslim students from attending classes on the ground that they wear hijabs.
At the outset — with the tussle over the hijab having spread across educational institutions in Karnataka, sparking protests and becoming politicised — the judge asked the counsel appearing in the case to “keep all emotions aside”.
“We will go by what the Constitution says. The Constitution is above the Bhagavad Gita for me. I will go by the oath that I have taken to the Constitution,” he told the state counsel, Advocate General Prabhuling Navadgi, and the petitioners’ lawyer, senior advocate Devadatt Kamat.
Before the bench commenced hearing on the merits, Kamat urged the court to ask the state to defer the college’s directive on the hijab by two months and permit Muslim students to take the final year exam of the current academic session while wearing headscarves. But Navadgi expressed his disinclination to interfere with the decision of the concerned college committee.
Navadgi told the bench that he was in court because a substantial question of law is involved in the petition — namely, whether the right to wear a hijab in educational institutions is a right under Article 25 of the Constitution, which allows a citizen to profess his or her faith and religion. If a student wants relaxation, she should approach the college committee, he informed the bench.
“We have not intervened in this matter. Autonomy is given to colleges to decide about uniforms. I am here to address the larger questions of law,” he said.
Kamat contested the law officer’s assertion and said the state’s stand is not as “innocuous as this,” since the government had issued an order on 5 February arguing that restrictions on the hijab did not violate Article 25 of the Constitution.
Kamat explained that his client’s concern was regarding the hijab, which is different from a burqa or full-body veil.
As the arguments Tuesday remained inconclusive and are likely to continue Wednesday, the bench made a verbal appeal to Karnataka’s people and said: “People should have faith in the Constitution. Only a mischievous section will keep the issue burning. But making agitations, going on the street, shouting slogans, attacking students, students attacking others, these are not good things.”
“Do not disturb the court. You should leave the judges to peace. So I appeal to all people to maintain peace and tranquility,” added the bench.
Determining essential practices
Kamat, who addressed the court first, attacked the state for issuing an order outside the scope of the Karnataka Education Rules. He argued that the state cannot determine what is or is not an essential practice of a religion. “That is the sole domain of Constitutional courts,” he said.
The Karnataka state order was based on a 2018 Kerala High Court judgment (Fathima Thasneem vs State of Kerala) that ruled that the hijab was not an essential religious practice of Islam. But, according to Kamat, this verdict was in a different context and cannot be applied to the situation in Karnataka.
In the Kerala case, he argued, competing rights of two entities were in question — the right of a Christian educational institution versus the right of a student. There, he added, primacy was accorded to the minority institution.
Further, Kamat quoted verses from the Quran and placed reliance on another Kerala High Court order of 2016 (Amnah Bint Basheer vs CBSE) to argue that the hijab is an essential religious practice of Islam. This order had allowed Muslim students to wear the headscarf while appearing for the CBSE All-India Pre-Medical Entrance Test.
On the issue of restrictions, Kamat continued, the right to wear a dress is a facet of the fundamental right to freedom of expression, and the threshold to restrict this right on the ground of “public order” must be extremely high. If the act of a girl wearing a hijab outside college is not a public order issue, then how can it be one if she wears it in college, he wondered.
He agreed with the bench’s proposition that there is not a straitjacket formula or a uniform test for public order, but any sort of restriction should be justified with material on record. Kamat told the court that girls wearing hijabs had been allowed to enter the college premises but were made to sit separately in a hall. “This is a form of religious apartheid, and untouchability is not fully abolished,” he said.
The advocate general denied these claims, interjecting against what he described as “baseless allegations.” He said that such statements have the potential to cause danger in a sensitive society.
(Edited by Rohan Manoj)