New Delhi: One of the petitioners challenging the hijab ban on students in Karnataka Monday asked the Karnataka High Court not to go into a larger question of whether every practice mentioned in the Quran is an essential religious practice and an inviolable right.
“I would not comment on whether any tenet in the Quran is an essential religious practice. For the purpose of this case, it is not the issue before this court,” senior advocate Devadutt Kamat, representing the petitioner, told a three-judge bench led by HC Chief Justice Ritu Raj Awasthi, when the latter put the query to him.
The bench, also comprising justices Krishna S. Dixit and J.M. Khazi, asked Kamat if whatever is stated in the Quran is an essential practice.
“Holy Quran is considered to be the first source of Islamic law. Our question is what all is stated in the holy Quran, is it to be treated as inviolable?” the bench wondered.
At this, Kamat advised the bench to “respect the tradition of judicial review”.
“What does not arise for consideration, the court should not get into that area,” he said, emphasising the issue before the court was concerned with Muslim girls’ right to religious practice of wearing the hijab.
“Court must not enter into a larger canvas of whether certain parts of the Quran are essential or not, as it does not arise for consideration over here,” he told the bench.
The court is holding daily hearings on a set of petitions that challenge the ban on the wearing of the hijab in Udupi’s PU government college, as well as the 5 February state government order (GO) issued to essentially support the restriction.
The basis for the GO were three different high court orders, which, according to the government, held that the hijab was not integral to Islamic faith and religion.
Given that the hearing remained inconclusive even Monday, with more petitioners waiting to make submissions, the bench will take up the matter Tuesday.
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Arguments based on Article 25
Kamat, who advanced extensive submissions Monday, concentrated on the facets of Article 25 of the Constitution, which allows individuals freedom of conscience on religious beliefs and permits them to profess their faith and propagate religion.
Kamat acknowledged the court’s view that the right is relative and can be curtailed subject to conditions outlined in the article itself, which is public order, morality and public health.
On whether every tenet in Quran is an essential practice, Kamat said pre-eminence has to be given to the holy book, as done by the Supreme Court in its judgment that struck down instant triple talaq.
So far as the hijab is concerned, the Quran says it is integral to Islamic faith, he added.
Kamat argued that someone’s fundamental right can be suspended only when an act is abhorrent or despicable. “Here people only want to wear a headscarf, which is a facet of freedom of conscience,” he said.
“And the state is duty bound to ensure that this freedom is protected,” he added.
Delegation of authority ‘totally illegal’
The senior counsel made two-fold arguments against the 5 February government order, which he said suffers from “total non-application of mind” and is in the teeth of Article 25.
Apart from making an unconstitutional declaration that wearing of hijab is not an integral facet of Islamic religion, said Kamat, it delegated its authority to a college development committee (CDC) to exercise its discretion to impose restrictions in the name of public order and morality.
“This delegation is totally illegal. Only a state can make such restrictions,” Kamat said, claiming that the CDC was an “extra-legal” authority without any legislative competence and was headed by the MLA of the area in which the college fell. Such a scheme is totally impermissible under the Constitution, he told the court.
When the bench observed that Kamat was presuming that the curtailment was on the ground of public order, the senior advocate drew the judges’ attention to the order.
At this, the court told Kamat that GOs cannot be read like a statute. “It has to be interpreted with some common sense,” the bench said.
However, Kamat insisted the GO indirectly talked about how students displaying their religious clothing is fomenting trouble. He read out the order prescribing uniforms for Kendriya Vidyalaya students, which allows Muslim girls to wear headscarves and demanded the court to issue a mandamus (a judicial writ or order) to permit the wearing of the hijab.
‘How can we stop media from reporting?’
Meanwhile, the Karnataka High Court declined to restrain the media from reporting on the proceedings when one of the petitioners sought the injunction on the ground that elections were on in some states.
“Such causes can only be taken by the Election Commission of India. The EC or any authority should make this plea. You are not a voter in any other state and none of the states holding the polls has approached us. How can we stop the media from reporting?” the court said.
However, it added that the media should report the matter responsibly.
At the same time, the bench proposed to put off the live streaming of the hearing in the matter on the HC’s official YouTube channel. Karnataka HC is one of the four high courts in India that livestreams its hearings, according to the 2018 Supreme Court judgment.
The hearing of the pleas against the hijab ban, presided by Chief Justice Awasthi, has generated a lot of interest amongst the public.
On 10 February, when the HC had indicated it would deliver an interim order, live viewership on the channel for the particular courtroom on that day was 20,000. By the time the two-hour post-lunch session ended Monday, the viewership on the channel for the same courtroom had crossed 80,000.
“We can put off livestreaming, that is not a problem. But as far as making restrictions on the media is concerned, we cannot do it. We will consider the request later, at an appropriate time,” the bench said.
(Edited by Saikat Niyogi)
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