New Delhi: The wearing of the hijab by Muslim girl students can be restricted only with the objective of furthering public order, morality and health, and the state government has failed to establish this as their aim before the court, a petitioner in the hijab case told the Karnataka High Court Thursday.
As a result, the government’s 5 February order, obliquely supporting the hijab ban at the Government Pre-University (PU) College in Udupi, should be quashed, the petitioner submitted before the bench.
A three-judge bench, led by Chief Justice Ritu Raj Awasthi, is hearing a batch of petitions by students against the government order, and seeking the right to wear hijab in classrooms.
Appearing for the aforementioned petitioner, senior advocate Devdutt Kamat rebutted the state government’s arguments that his client had asked the court to declare hijab an essential religious practice.
“I have not sought a general declaration for wearing of hijab. I have sought for quashing of the government order and for allowing the petitioners to wear (hijab). Second relief is consequential to the quashing of the government order,” he said. Kamat was giving his rejoinder to the state and Udupi college’s earlier rebuttal to the petitioners’ arguments.
Kamat added that Article 25 of the Constitution — which allows Indian citizens to profess their faith, religion and freedom of conscience — is a canopy of rights, both essential and non-essential. Even if hijab is not an integral part of Islamic law — as proclaimed by the state — it is still a right that is getting infringed by the government order, he said.
A restriction, Kamat submitted, has to be tested and the same “must be in direct relation to the object sough to be achieved”. According to the senior counsel, qualified restrictions can be imposed on hijab wearing only if they are reformative in nature. However, the law under which the hijab ban rule has been framed is not one.
“If the object is to say that hijab is a regressive practice then it must be evident from the plain reading of the (Education) Act and the rules made thereunder. Education Act is not an act for reform of religion within the meaning of Article 25 (2) (the provision that permits restrictions on religious practices) of the Constitution,” Kamat said.
He attacked the government order for being impermissible under the Constitution, as well as contrary to the principles enumerated under administrative law. The judgments referenced in the government order to support the hijab ban are not applicable in the given situation and the state in its rebuttal has also failed to explain their relevance, he said.
“If the judgments are irrelevant, then where is the material to come to understand that hijab is not permissible?” he told the bench.
Arguments against College Development Committee
Kamat repeated his objections against the power given to the College Development Committee (CDC) to prescribe a uniform for students.
The state, college and the CDC had, in their rebuttal, asked the court to not entertain the petitioner’s arguments against the CDC because its constitution was not under challenge. To this, Kamat said he did not have problems with the CDC, but the way it functioned.
“Till it is a guiding force, we have no problem. The problem arises when statutory functions are given to them,” he argued.
He raised technical objections against the government order and argued that if the same is quashed the restriction on Muslim girls’ right to wear the hijab will automatically end.
In case the restriction is declared invalid, then the court need not venture into the question of whether the hijab is an essential religious practice or not.
At this, the bench sought to know from Kamat which fundamental right of his client was getting violated due to the government order.
In reply, Kamat emphasised: “If a rule is eventually leading to a situation where people do not have benefit of the state’s policy on education, then it is challengeable under Article 21 (right to live with dignity).”
Kamat differed with the state’s view that hijab should be tested on the principles of constitutional morality, expounded by the Supreme Court in the Sabarimala case.
He admitted constitutional morality is an overarching principle, but said it is a restriction on state’s power to frame laws and not on a citizen’s fundamental rights. “State here is using the concept of constitutional morality to defeat the choice of citizens, which is access to institutions,” he claimed.
Kamat touched upon briefly the submissions he made earlier on the hijab being an essential religious practice and cited references from the Quran and Hadith. Both had been declared a first source of the Islamic law by the Supreme Court, he said.
(Edited by Poulomi Banerjee)