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Hostile Discrimination, Freedom of Conscience: New Arguments on Hijab Ban in HC

The Karnataka HC continued its hearings on the hijab ban in the state, with some new arguments raised.

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"Why are Muslim girls who conscientiously believe that they should wear a hijab be forced to make a Hobson's Choice? Why should they have to choose between their education and their faith? Is this fair?"

As the Karnataka High Court continued to hear the hijab row petitions, the judges were told that they don't have to hold that wearing the headscarf was an integral part of Islam to protect the right of Muslim girl students to wear them to class.

Senior advocate Yusuf Muchhala argued that Article 25(1) of the Constitution specifically recognises "freedom of conscience," which is distinct from the "right to profess, practise and propagate religion."

He noted that some people might not believe in any religion, or might believe in all of them – freedom of conscience protects these individual beliefs and choices in the same way as an established religious belief. It must also not be forgotten that choice of clothing is part of one's freedom of expression.

"When a right is claimed under Article 25(1) and 19(1)(a), what matters is the entertainment of a conscientious belief by an individual; it is not necessary to determine whether it is an integral part of the religion," Muchhala submitted.
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He noted that Justice Jasti Chelameswar's opinion in the landmark Puttaswamy I judgment of the Supreme Court had also considered freedom of conscience to fall within the fundamental right to privacy.

As with previous days of the hearings, the proceedings were live-streamed on the Karnataka High Court's YouTube channel and can be watched in full here:

This argument on freedom of conscience could prove important as the case goes ahead, as there is significant debate over whether or not the wearing of hijabs is an essential religious practice for Muslim girls.

While the Kerala High Court had recognised it as such in 2016 by allowing Muslim girls to wear hijabs when sitting for medical entrance exams, it also acknowledged that other views could be taken into consideration – and that decision is in any case not binding on the Karnataka High Court here.

Muchhala, arguing for the petitioners seeking to protect the rights of Muslim girl students, also contended that the Karnataka government order dated 5 February, which is being used to stop girls from wearing hijabs to classes in educational institutions, is "manifestly arbitrary" – which would make it a violation of Article 14 of the Constitution.

To argue that the order – which prohibits wearing any clothing which disturbs equality, harmony, or public order (without specifically banning hijabs) – is manifestly arbitrary, Muchhala pointed to the fact that the government order said it needed to take action because of opposition by other students.

The order was also passed giving college development committees the right to make rules prohibiting hijabs and other clothing without any opportunity for consultation, or for aggrieved students and families to argue against the rules.

Lastly, Muchhala argued that even though fundamental rights can be subject to reasonable restrictions, the prohibition on Muslim girls from wearing hijabs to classrooms violates the doctrine of proportionality, which any such restrictions have to comply with.

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Hostile Discrimination?

Earlier during the hearing, senior advocate Ravivarma Kumar had argued that existing rules for pre-university colleges from the state government itself for the academic year 2021-22 had said that no uniform would be prescribed by state authorities.

If this was going to be changed, he suggested that notice should have been given to students in advance.

In another significant argument, Kumar argued that the move was one of targeted discrimination against Muslims, given no other religious communities' religious practices were being questioned.

"Why is the government singling out hijabs alone and making this hostile discrimination," he asked. "This is only because of her religion that the petitioner is being sent out of the classroom. A bindi-wearing girl is not. A bangle-wearing girl is not. A Christian wearing a cross is not. Why only these girls? This is a violation of Article 15."

The judges pointed out that the government order didn't single out hijabs in its wording, but Kumar noted that the government order did mention hijabs and argue they were not an essential practice even if this was not in the operative part.

Referring to the way in which Muslim girls wearing hijabs had been refused entry to classrooms, he argued that the prohibition "is full of prejudice because of the religion. No notice, they are straight away sent out of the classroom by persons without any authority under the law."

The point on lack of authority had been explained by Kumar earlier in the hearing when he noted that the Karnataka Education Act 1983 and its 1995 Rules never gave college development committees (CDCs) any authority to frame rules and directions which affect fundamental rights, and not could such committees, which include political leaders like MLAs, ever be given the power to do so.

Yet, the government order dated 5 February now allowed these CDCs to decide what uniform had to be worn by students, and what items of clothing could be prohibited. "With all humility, I say the constitution of a committee of this nature gives a death blow to our democracy and segregation of powers," he said.

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Arguments to Continue on Thursday

Arguments in the case will continue at 2:30 pm on Thursday, 17 February.

The three-judge bench of Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit, and Justice JM Khazi will hear from more petitioners arguing that the ban on hijabs in classrooms violates their fundamental rights, as well as from the Karnataka government, and possibly some intervenors arguing for both sides.

The high court had previously heard detailed arguments from senior advocate Devadatt Kamat, representing the Muslim girl students who were being denied entry to their college while wearing hijabs, on why the government's order was unconstitutional, and why the wearing of the headscarf was, in fact, an essential religious practice for them.

He had also argued that a heckler's veto cannot be used to prevent the girls from exercising their fundamental rights.

On Thursday, 10 February, the bench had agreed to hear 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

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