New Delhi: Defending its order legitimising ban on the wearing of hijab inside government educational institutions, the Karnataka government told the high court Friday that the practice of wearing the hijab must pass the test of constitutional morality laid down by the Supreme Court in the Sabarimala and triple talaq cases.
A three-judge bench comprising Chief Justice Ritu Raj Awasthi and Justices J.M. Khazi and Krishna S. Dixit has been hearing multiple petitions challenging the government order passed on 5 February.
During the hearing, advocate general Prabhuling Navadgi told the court, “There were unfortunate events which took place… the government has been berated in these proceedings, saying that we are dictated by some other reasons when we administered these orders, we have discriminated against girls and women… With all emphasis and all humility at my command, I want to place before your lordships and before a constitutional court, the state believes in treating everyone equal.”
Navadgi asserted that the practice of wearing a hijab is not an “essential religious practice” of Islam and would therefore not be protected by Article 25 of the Constitution, which guarantees the “freedom of conscience and free profession, practice and propagation of religion”.
“The practice of hijab, to be accepted, must pass the test of constitutional morality and individual dignity, as enshrined and expounded by the Supreme Court in the Sabarimala and Shayara Bano (triple talaq) cases,” he then said.
The matter will next be heard on 21 February.
Also read: Karnataka HC hijab hearing: Petitioners say ‘non-existent’ college panel can’t decide on ban
What did the order say?
The Karnataka government order, which has been challenged before the high court, was passed on 5 February, under Section 133 (2) of the Karnataka Education Act, 1983, which empowers the state government to issue directives for government educational institutions to follow.
According to reports, the order stated that a headscarf is not part of the uniform, and that wearing a headscarf is not an essential religious practice for Muslims that can be protected under the Constitution. It also quoted judgments of the Supreme Court and various high courts to argue that banning hijabs in schools and colleges is not a violation of the fundamental right to practise religion.
Multiple petitions were then filed in the high court, challenging the validity of this order. The matter was initially heard by a single judge, who then referred the petitions to a three-judge bench last week, in view of “the enormity of questions of importance which were debated”.
Following this, the high court passed an interim order, restraining students of colleges that have a prescribed dress code or uniform from wearing “religious garments” till further orders, and requested the state to reopen educational institutions.
The formal order was uploaded on the Karnataka High Court website Friday morning, a day after the bench indicated its intention to deliver it. The seven-page order said, “Pending consideration of all these petitions, we restrain all the students regardless of their religion or faith from wearing saffron shawls (bhagwa), scarves, hijab, religious flags or the like within the classroom, until further orders”.
‘What was the necessity of quoting judgments’
During Friday’s hearing, Chief Justice Awasthi asked Navadgi “what was the necessity” to quote judgments on hijab in the 5 February government order.
“They were suggesting something,” Justice Dixit added.
Navadgi, however, said, “We (the state) have consciously kept ourselves away from this. We have given autonomy to the college development councils to decide upon uniforms, including the issue related to hijab”.
Justice Dixit, however, pressed, “In so many words you have not stated that wearing of hijab should be prohibited… But for a commoner, the order addresses common people like college teachers, students, parents, members of the CDC. How will they interpret this?”
“Can colleges or schools ignore this part of the order?” he added.
Navadgi then said, “On better advice, possibly, those things could’ve been avoided”, but added that “the attack on it is irrational. It gives a communal color, discriminates against Muslim women is absolutely without basis”.
Navadgi went on to assert that wearing the hijab is not an essential religious practice, and asserted that the “freedom of conscience” was different from the right to propagate religion. This was in response to an argument by a petitioner’s lawyer that hijab, even if not an essential religious practice, would still be protected under the freedom of conscience guaranteed by Article 25.
The hijab, Navadgi said, “certainly comes in the manifest exercise of the right to practice of religion. It is a right they are trying to exercise pursuant to religion”, but iterated that it wasn’t “an essential religious practice”.
Defending the government order, Navadgi also told the court that the order is “innocuous in nature and does not interdict any of the rights of the petitioners”. He asserted that the 5 February order is in consonance with the provisions of the 1983 Education Act.
‘Hijab does not violate public order’
Earlier this week, the court heard extensive arguments from the petitioners. Senior Advocate Devdatt Kamat, appearing on behalf of some of the aggrieved students, told the court that the state government’s declaration that wearing a headscarf isn’t an essential religious practice is “totally erroneous”.
He referred to verses of the Quran as well as a 2015 Kerala high court judgment, which had allowed two Muslim girls to wear the hijab while appearing for the All-India Pre-Medical Entrance Test (AIPMT). In that verdict, the Kerala High Court had observed that “covering the head and wearing a long-sleeve dress by women have been treated as an essential part of the Islamic religion”.
Additionally, Kamat contended that the College Development Committee (CDC), which issued the prohibition on the headscarf after the 5 February order, did not have the power to do so.
Senior advocate Ravi Varma Kumar, representing a few other petitioners, also submitted that the CDC is a non-existent body under the State Education Act and is not authorised to regulate uniforms of pre-university (PU) government college students. Kumar further insisted that the hijab does not violate public order, equality, or unity.
Also read: Reform on hijab important but where it’s coming from is more important