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Karnataka hijab row: Wearing headscarf essential practice, petitioners tell HC; hearing to resume tomorrow

The petitioners have asked the state to allow Muslim women to attend classes wearing hijabs while the government argued that it was not clear if the hijab is necessary in Islam

FP Staff February 14, 2022 20:16:07 IST

Karnataka hijab row: Wearing headscarf essential practice, petitioners tell HC; hearing to resume tomorrow

An Indian Muslim woman holds a placard during a protest against banning Muslim girls wearing hijab from attending classes at some schools in the southern Indian state of Karnataka(Representational Image). AP

Wearing of headscarves is an essential practice of the Islamic faith, a group of petitioners told the Karnataka High Court on Monday. This amid the backdrop of the hijab ban controversy and the Karnataka government resuming reopening of schools up to Class 10.

A full bench of the Karnataka High Court comprising Chief Justice Ritu Raj Awasthi and justices Krishna S Dixit and JM Khazi heard a clutch of writ petitions pertaining to the hijab ban controversy on Monday, as per TOI .

The petitioners have asked the state to allow Muslim women to attend classes wearing hijabs while the government argued that it was not clear if the hijab is necessary in Islam. The number of petitions, including a PIL, is now at six.

As per Bar & Bench, the hearing began today with Chief Justice Ritu Raj Awasthi asking the media to be more responsible. He said, "We are not against media, our only request is to be responsible." Counsel Subhash Jha said his request was for parties to restrict their submission to what was in the rule book and not give communal colour.

Senior advocate Devadatt Kamat, appearing for the petitioner, submitted before Karnataka HC that the Government Order (ban on hijab) is a non-application of mind. He said this GO (government order) is in the teeth of Article 25 and it is not legally sustainable, ANI said in a report.

Kamat read out the GO which mentioned:

1. Wearing of hijab not protected by Article 25;

2. They are leaving it to College Development Committee to decide whether an exception should be made for hijab.

Kamat said, "Point no. 1 is totally incorrect. Leaving it to the college committee is totally illegal. Public order is State's responsibility. As per GO, it is some committee with MLA which will decide whether to exercise a fundamental right. This is totally impermissible."

CJ Awasthi noted that the question was whether Article 25 was absolute right or subject to restrictions, Bar & Bench said.

"Article 25 is not subject to generally reasonable restrictions like in Article 19. The restrictions which can be imposed is mentioned in Article 25 itself - public order, morality, health," Kamat answered.

"What is public order?" CJ Awasthi asked. He said there is a concept called heckler's veto, if he was walking on the street and someone heckles him, that cannot mean State can stop movement on streets saying it affects public order.

He added, "We are trying to understand whether, by this GO, the State has restricted Article 25 or not."

As per Bar & Bench, Kamat, responding to CJ Awasthi's remarks, said, "The State has a positive duty to ensure people can exercise their fundamental rights. If certain sections of the society don't want other sections fundamental rights to play out, is no ground to restrict the fundamental rights of that section."

CJ Awasthi further asked whether by the GO, was there any restriction on fundamental rights, to which, Kamat replied, "It is the wrong understanding and I am challenging it."

"The GO relies on certain High Court rulings. It is their (State's) understanding that it is not a violation," CJ Awasthi said.

After the above arguments, CJ Awasthi said that Article 25 should be understood before moving further and Kamat read it out, Bar & Bench,

"Aside from public order, health and morality, the State can make law restricting any economic, financial, political or other secular activity which may be associated with religious practice," said Kamat.

Kamat then referred to the Kerala High Court judgment which was relied upon by GO. The judgment dealt with whether hijab can be allowed for a student attending a medical entrance exam or not.

As per Bar & Bench's report, relying on Kerala HC judgment, Kamat said, "There is a specific injunction based on verse 31 as per which modesty has to be protected."

"There was a lot of talk on media about how I as a Hindu could argue this. I am only doing my duty as counsel by reading these out. So I concur with Your Lordships that media should be responsible," Kamat said.

He added, "If a believer thinks the practice is essential to his faith and that practice is innocuous and does not infringe on anyone's freedom, then in that context, the test of essential religious practice will not arise."

Kamat further said, "It is not our case that we will wear some other colour. We want to cover our heads using a headscarf of the same colour as that of uniform."

Kamat also read out Madras High Court judgment in Ajmal Khan which said wearing purdah is not essential but a headscarf is. The judgment referred to a Malaysian high court and Supreme Court judgments, as per Bar & Bench.

Justice Dixit asked Kamat whether there are any decisions by the court of any other Islamic country other than Malaysia taking a contrary view on the hijab is essential to Islam.

"I am not aware of. But I am not a repository of all knowledge. But as of now my research shows, there is no authoritative pronouncement saying it is not essential to the practice of Islam," Kamat said.

He added, "The second judgment cited by GO is the Bombay HC judgment but this does not help State government because it is rendered in the context of the all-girls section. Hence, the injunction in Islam that will not be violated."

"The third judgment cited by GO is a Madras HC judgment. This has nothing to do with Article 25. Thus, these judgments have to be seen in the context of facts. This judgment does not have one word on Article 25 or headscarf. This was a case where the uniform was prescribed for teachers and whether the same was permissible under the Act and under contract with teachers," Kamat said as per Bar & Bench.

While high schools for up to Class 10 reopened on Monday, colleges will resume on 16 February.

Kamath said as far as core religious practices are concerned, they come from Article 25(1) & that it is not absolute. If core religious practices harm or offend public order then it can be regulated.

He pointed that Muslim women are allowed to wear headscarves in Kendriya Vidyalaya.

Quoting Kerala HC judgment, he said this Court has to examine the dress code prescribed for women in Islam and; such prescription is an essential part of the religion or not; and if it forms part of essential religious practice, can it be regulated under Article 25(1).

He further said, "The last submission which I want to make is even I need not go as far deep into essential religious practice at all. Because essential religious practice theory comes in when practising of fundamental rights of religious violates someone else fundamental rights."

"I am not only challenging the government order but asking for a positive mandate for allowing me to wear a headscarf of the same colour of the uniform," he added.

Towards the end of today's hearing, Kamath said that wearing headscarves is an essential practice of the Islamic faith.

The court said the hearing would resume tomorrow.

Karnataka schools re-open

Students were allowed to enter the schools wearing hijab but they were asked to remove those during classes. Few visuals also showed students entering and leaving the school premises wearing hijabs and burqas, as per News18.

In Udupi district - where the controversy erupted in December- a Class 9 student at a government-run school told NDTV that a classmate and she both had to remove their hijabs to attend class.

NDTV's report said, in Shivamogga 13 students, 10 from Class 10, two from Class 9 and one from Class 8, went home after rather than removing their hijabs. Their parents said, "We brought them to write an exam...they didn't wear a burqa, only hijab. Earlier all (students) wore hijabs... we cannot let them take the hijab off, that is why we're taking them back."

Protests have escalated rapidly over the past few weeks. Last week Muskan, a young student in Mandya, was heckled by saffron-waving male aggressors. The protests have been noticed worldwide, with Nobel laureate Malala Yousafzai and French footballer Paul Pogba supporting the Muslim students.

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Updated Date: February 14, 2022 20:40:18 IST

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