The Karnataka High Court on Monday, 14 February, resumed hearing the petitions filed before the court by Muslim girl students asking for protection of their right to wear a hijab.
The matter is being heard by a three-judge bench of Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and JM Khazi. The chief justice asked the media to be responsible while reporting the matter when the hearing began, but rejected a plea to impose a gag order on the media in view of the ongoing state elections.
Senior advocate Devadatt Kamat made extensive arguments on Monday for a group of Muslim girls, explaining why the Karnataka government order on prohibition of clothing is invalid. He also argued that the state cannot hide behind potential law and order problems to stop the girls from exercising their fundamental rights.
He will continue arguments on Tuesday, 15 February at 2:30 pm.
The proceedings were streamed live on the Karnataka High Court's YouTube channel:
Illegality of Karnataka Govt Order & the Essential Religious Practice Question
There were two broad strands of argument by Kamat in the hearing on Monday:
The Karnataka government's order dated 5 February unlawfully gives college development committees the power to ban hijabs (as there is no state-wide policy on uniforms) which, it is argued, they don't have the power to do.
The girls are being forced to give up what they view as an essential religious practice even though there is no threat to public order.
"This whole delegation to CDC [by the government order] to decide whether to permit of wearing of headscarf or not, is a total abdication of state responsibility," Kamat contended. "The Constitution says that Article 25 is subject to public order, but the state is saying that what affects public order or not will be decided by a committee which is headed by an MLA. Public order is an essential state function, can this be left to an MLA committee?"
In terms of the government order, Kamat also noted that it wrongly cited three decisions of various high courts to try and say that wearing a hijab is not an essential religious practice. Not only was this not something for the government to decide, he explained, but the judgments cited didn't even say what the government claimed.
A question arose at this time about whether or not the government order said clothes which disturbed 'public order' had to be banned. According to the judges, it was not clear if that was the term being referred to in the state government's order, which is in Kannada, and so they would be trying to get an accurate translation of the order.
On the issue of whether wearing a hijab is an essential religious practice, Kamat pointed out that the Supreme Court had said in the Ratilal Panachand Gandhi case that "No outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner".
While public order can still be a ground to restrict even an essential religious practice, the question of whether a particular matter is an essential religious practice is not something the government should be deciding on its own. "The State is an outside authority, it cannot say that wearing a headscarf is essential practice or not. It has to be seen from the view point of a believer," Kamat explained.
The High Court's Controversial Interim Order & Background to the Case
On Thursday, 10 February, they had agreed to continue hearing the pleas filed by the girls, but had refused to pass an interim order allowing them to continue wearing hijabs until the court arrives at a final decision.
Instead, while directing the reopening of colleges in the state, the judges had controversially ordered that no student should wear any religious clothing while the court continues to hear the case.
"Pending consideration of all these petitions, we restrain all the students regardless of their religion or faith from wearing saffron shawls (Bhagwa), scarfs, hijab, religious flags or the like within the classroom, until further orders."Karnataka High Court order dated 10 February
"It is a matter of a few days only," Chief Justice Ritu Raj Awasthi had said during the hearing on Thursday, rejecting the argument raised by Kamat (for a group of Muslim girls denied entry to their college on 3 February) that this would amount to a suspension of the right to practice one's religion under Article 25 of the Constitution.
Schools and colleges have reopened in Karnataka following a brief closure by the state government, after the controversy over stopping Muslim girl students from wearing hijabs escalated over the last few weeks. Reports have been pouring in that citing the court's order, schools and colleges across the state have been refusing entry to girls wearing hijabs and forcing them to take them off to attend classes.
The row originally began when a government-run pre-university college in Udupi refused to allow a group of Muslim girl students to attend classes while wearing the headscarves.
Hindu right-wing groups began promoting protests against the wearing of the hijab by Muslim students, providing saffron scarves and head-dresses to Hindu students to wear to classes. Muslim girls were heckled by saffron scarf-wearing boys, and in one case, a saffron flag was hoisted at an educational institute in the state.
The high court is hearing petitions filed by several Muslim girl students who argue that prohibiting them from wearing hijabs is a violation of their fundamental rights under the Constitution, including the right to freely practise their religion (Article 25), the right to freedom of expression (Article 19(1)(a)), and the right to privacy.
A core issue before the court is whether the wearing of hijabs by Muslim girls/women amounts to an 'essential religious practice'. No matter the government's intentions (for instance, promoting equality or harmony in educational institutions), it cannot restrict an essential religious practice except where that amounts to a clear violation of public order, (constitutional) morality and health.
While the Kerala High Court had held that wearing a headscarf could be considered an essential religious practice for Muslim girls/women in 2016, allowing it to be worn during medical entrance examinations, there is some amount of confusion whether this should be the case.
The high court will be hearing arguments from lawyers for groups of Muslim girls, who will contend that forcing the girls to take off the hijabs is a violation of their constitutional rights.
They have also challenged an order passed by the BJP government in the state on 5 February, which prohibited the wearing of any clothes which 'disturbed public order'.
In the hearing on Thursday, senior advocate Sanjay Hegde had made impassioned arguments for interim relief, along wtih Kamat.
Both the senior advocates noted the protection of freedom of conscience by the Supreme Court in the landmark Bijoe Emmanuel case, where the apex court had overturned decisions by a school to expel students from the Jehovah's Witnesses faith who would not sing the national anthem for religious reasons (even though they would stand up for it).
Karnataka Advocate General Prabhuling Navadgi will argue in favour of the restrictions on students and support the government position.
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