‘Why Does the Government Order Refer to Judgments on Hijab, if it’s Innocuous’, Karnataka HC Asks State Government

FACED with stiff opposition to its order banning the wearing of hijab, the Karnataka government today defended it before the Karnataka High Court by drawing support from constitutional morality and the right to individual dignity.

The High Court on Friday continued to hear the petitions relating to the Hijab ban in public schools and colleges in the State. The matter was heard by a bench comprising Chief Justice Ritu Raj Awasthi, Justice Krishna S. Dixit, and Justice J.M. Khazi.

During the previous hearings, the counsels for the various petitioners had argued that the ban on hijab was without authority of law, and violative of Articles 14, 19(1)(a), 21 and 25 of the Constitution of India.

Today, Advocate General Prabhuling K. Navadgi started his arguments on behalf of the state of Karnataka.

He submitted that the impugned order dated February 5, 2022 was with the authority of law, and not violative of Articles 14, 19(1)(a), 21 and 25 of the Constitution.

He argued that the practice of wearing a hijab was not an essential practice in Islam and that wearing a hijab was not an aspect of Article 19(1)(a). He further submitted that the practice of wearing hijab must pass the test of constitutional morality, and it must be ensured that it does not violate individual dignity.

The advocate general placed before the court certain documents to show that the College Development Committee [CDC] was first constituted way back in 2014 and was never challenged by any stakeholder. He further submitted that since then, the CDC had resolved multiple times to bring uniformity in the dress code prescribed to the students.

The Advocate General submitted that there was no difficulty before December 31, 2021. On that day, he claimed that a group of students met the principal and insisted that they would enter the campus only wearing a hijab. In light of this, the college passed a resolution on January 1, 2022 which required all students to follow the prescribed dress code. He submitted that from here the matter escalated and it led to the filing of one of the present writ petitions. He pointed out that the said petition was filed before the impugned order of February 5, 2022 was issued.

He added that the order dated February 5, 2022 was innocuous and did not affect the rights of any of the petitioners.

The advocate general submitted that the decisions related to the uniform were taken by the college authorities and the CDCs, and that the state had no role to play in the decision. He added that the order in essence only stated that the students were required to follow the dress code already prescribed by the relevant authority.

To this, the Chief Justice questioned him as to why the order went into citing judgments by the Supreme Court of India and the various high courts with regard to the hijab not being an essential practice in Islam. The Attorney General replied that only the operative part of the order had to be seen and that the reference to the judgments could have been avoided. He submitted that the same was inadvertent.

The Advocate General said that the State was yet to make a decision concerning uniforms. He submitted that there was a high-level committee set up to examine the issue. The Chief Justice stated that there was inconsistency in the approach of the Government as on one hand it had issued an order, and on the other hand it had a committee still deliberating on the issue.

The Advocate General submitted that the Karnataka Education Act had entrusted the state with residual powers which allowed them to make decisions with regard to subjects such as uniforms in pre-university colleges that did not have a managing committee.

He submitted that while the petitioners had claimed that the CDCs had been constituted without the authority of law, the same was incorrect. He submitted that the CDCs had been constituted under Section 133(2) of the Act. He further submitted that the CDCs had a very diverse representation of stakeholders, which includes parents and students, and therefore it was wrong on the part of the petitions to question their decisions.

Justice Dixit pointed out that the CDCs had Members of Legislative Assembly [MLAs] as members, and that MLAs held strong political views. He asked the Advocate General if they had ever considered the fact that the MLAs’ political views could guide their decision-making. To this, the Advocate General light-heartedly replied that this was an age-old debate and therefore there was no correct answer to it.

Justice Dixit asked a follow-up question about who appointed the members of the CDC. To this, the Advocate General replied that he would have to seek instructions and would have an answer for the court on the next date of hearing.

The Advocate General referred to the claim of one of the counsels appearing for the petitioners that even if wearing of Hijab was not considered an essential practice, it was still protected under Article 25 as it guaranteed freedom of conscience. He explained that this was not the case as the freedom of conscience allowed the freedom of belief, and not practice, and that wearing of hijab constituted a practice of religion. To buttress his argument, the Advocate General read out a passage from jurist D. D. Basu’s book on Constitutional Law.

When the Chief Justice candidly asked if wearing a hijab formed an essential religious practice, the Advocate General replied in the negative. He submitted that he would justify his stance with judicial authorities on the next date of hearing.

Just before the court was about to rise, an advocate submitted that the court’s previous order in the case was being misinterpreted by many, and the same was causing a lot of suffering to Muslim women across the state. The Chief Justice stated that the order was very clear and there was no scope of misinterpreting it. The Advocate General submitted that if he was given details in writing about the same, he would instruct all authorities to act in accordance with the law.

To this, the lawyer asked the court to call for a report from the state. The Court asked the lawyer to file a relevant application for the same and stated that it could not act unless something was placed before it.

The court will continue hearing the matter on Monday.