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Hijab Row: Karnataka HC Questions 'Contradictions' in Govt Stand

The state government insisted that it was not interfering with religious issues & defended its controversial order.

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Law
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The Karnataka government on Friday, 18 February, defended its actions in the ongoing controversy over allowing Muslim girls to wear hijabs in classrooms before the Karnataka High Court, claiming that it has not imposed any ban on clothing itself, leaving this to college authorities.

"The government order dated 5 February 2022 is totally innocuous, it does not interdict any of the petitioners' rights," argued Advocate General Prabhuling Navadgi. "The conscious stand of the state is that we don't want to interfere in religious matters."

The Advocate General faced several tough questions from the bench over seeming contradictions in the state government's stand during the hearing on Friday, and will resume arguments on Monday, 21 February.

The first probing query came after he had tried to insist that the state government had not itself passed a ban on hijabs, and only said students needed to follow whatever rules on uniforms/dress codes were set by the relevant college authorities.

The full proceedings can be watched on the Karnataka High Court's YouTube channel:

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Karnataka High Court Chief Justice Ritu Raj Awasthi pointed out that while the operative part of the order on 5 February didn't ban hijabs or any form of clothing, the preceding paragraphs of that order included an argument on why hijabs were not an essential religious practice under Islam.

"What was the necessity to mention this? You say the GO (government order) is innocuous. But you say banning hijab will not violate Article 25. What was the necessity of saying all that," the Chief Justice asked.

Justice Krishna S Dixit also said that while the operative part of the order did not say that wearing hijabs had to be prohibited, but "these orders are meant for common people: students, teachers, members of CDC – how will they interpret it?"

The Advocate General continued to insist that the state government consciously decided to stay away from interfering in religious matters.

He also reiterated that autonomy had been given to college authorities to decide whether to prescribe uniforms; in the case of government-run pre-university colleges (ie Classes 11 and 12), this was left to the college development committees (CDCs).

The Chief Justice then asked that if a CDC allowed Muslim girl students to wear hijabs to class, would the state government have no objections to this.

In response, the Advocate General said the state government had revisional powers under Section 131 of the Karnataka Education Act, which could be used to address any objections to the decision of a CDC.

Eventually, the Advocate General admitted that on better advice, the paragraphs in the government order mentioning judgments which supposedly say hijabs are not an essential religious practice for Muslim women "could have been avoided."

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Navadgi had also earlier admitted that when it came to the part of the order which says that if a uniform isn't prescribed, students should avoid wearing clothes which can disturb law and order, the drafter had got a bit 'over-enthusiastic'. "What was meant was, in case no uniform is prescribed, please wear decent clothes. I agree it could have been worded better."

Despite this, he continued to insist that the government order was not problematic, and that criticism of the government's actions as irrational and discriminatory against Muslim was "without any basis whatsoever."

The bench then questioned the Advocate General on the government's rationale for the government order. Navadgi had explained the chronology of events starting with the origins of the hijab row in an Udupi pre-university college, and how the state government had said that it would set up a high-level committee to look into the issue at that time.

However, it had then passed its order on 5 February because the issue "began to spread outside" the original college and its CDC.

"Wasn't this premature? One hand you're saying high level committee was set up. Then they pass this order. Doesn't this amount to contradictory stand," the Chief Justice asked him.

Navadgi then moved on to his argument on how hijabs were not an essential religious practice, and therefore not allowing them would not be a violation of Article 25 of the Constitution.

Noting that Article 25 itself says that the right to practise one's religion is subject to "public order, health and morality", the Advocate General explained that morality in this case meant constitutional morality, and the right to wear a hijab would have to be tested on this as per the Supreme Court's judgments in the Sabarimala and Triple Talaq cases.

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The judges noted the argument made on Wednesday, 16 February by senior advocate Yusuf Muchhala for some of the petitioners, that the court wouldn't have to find that the wearing of hijabs was an essential religious practice to hold that it was protected by Article 25.

Muchhala's argument was that Article 25 also protects freedom of conscience, not just the right to practise and profess one's religion – the essential religious practice test only applies to the latter aspect.

If one holds a conscientious belief, then this cannot be interfered with by the state unless it can be shown to expressly threaten public order, morality or health, even if that belief is not an essential religious practice, he had contended.

Navadgi replied that from his research, the idea of freedom of conscience related to one's mental beliefs, but any outward expression of these, like wearing a hijab, constitutes the practise or profession of one's religion, so the essential religious practice test would still need to be followed.

As the day's proceedings wrapped up, the judges were informed that their interim order was being wrongly cited to deny entry to not just government-run PU colleges, but also degree colleges and schools, including minority schools.

The court did not issue any clarification on its original order after the Advocate General assured it that he would ensure any such incidents were looked into if provided to him in writing.

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Previous Hearings

Following the arguments on interim relief on 10 February, the high court bench of Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and JM Khazi has heard arguments on the merits of the matter this whole week. All the proceedings have been livestreamed on the high court's YouTube channel.

The first set of arguments were made by senior advocate Devadatt Kamat, who challenged the government order dated 5 February and argued that the wearing of hijabs was in fact an essential religious practice in Islam.

Senior advocate Ravivarma Kumar argued that the way in which the government order was being used showed it was hostile discrimination against Muslim girl students.

On Thursday, a request was made to the court to pass an interim order allowing Muslim girls to wear hijabs to classrooms on Fridays and during Ramzan.

On Thursday, 10 February, the bench 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

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