The hearing before the Karnataka High Court in the hijab case concluded on February 25, Friday..The hearing before the three-judge Bench of Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and JM Khazi lasted 11 days.The Bench on the very first day of the hearing also passed an interim order directing students not to wear hijab, saffron shawls (bhagwa) or use any religious flags while attending classes in Karnataka colleges which have a prescribed uniform in the interim.In this piece, we trace how the three judges responded to the arguments advanced by different parties..To the petitionersChief Justice (CJ) Awasthi was quite vocal from the beginning of the hearing. On the first day of the hearing before passing interim order, he told the petitioners:“You people should not insist for wearing all these religious things which are not conducive. We will restrain everyone (in the interim) from adopting all these practices,” he said.On Article 25, the Chief Justice specifically queried whether the Government Order (GO) of February which gives power to the College Development Committee (CDC) to prescribed uniform, actually restricts the fundamental right to practice religion under Article 25.“Whether by this GO, is there any restriction on fundamental rights,” he asked Senior Advocate Devadatt Kamat who was representing one of the petitioners.He also sought to know specifically what was the fundamental right the petitioners were claiming.“How can you insist on wearing hijab in an institution which has a uniform. What is this fundamental right you have is what we want to understand,” he said..He further asked whether the petitioner-students have been wearing headscarves for considerable time or whether they started wearing it recently as was alleged by respondents.“You are insisting on wearing a particular headdress in an institution which has a uniform. You have to establish what fundamental right is being infringed. Forget about what the State has said. Show right under Article 25(1),” he told Kamat during the rejoinder arguments.Kamat had also argued that Article 25 protects all practices and not necessarily ERP. In this case, the question of ERP need not be gone into since restriction imposed is not as per a valid law, Kamat had said.“You say it need not be ERP. We want to know what right has been infringed,” CJ Awasthi asked..We want to know what is the right that has been infringed?CJ Ritu Raj Awasthi.Regarding the GO and the power granted to CDC by it, CJ remarked that it does not mention anything about hijab but only entitles CDC to prescribe uniform.“The GO does not say about hijab. It only speaks about the uniform. That is provided under the (Karnataka Education) Act,” he said.One of the aspects argued by petitioners was on ‘public order’ as a ground taken by the State to issue the GO.The CJ, however, said that it is only an assumption by the petitioner.The CJ also opined as to whether it would not be permissible for CDC to prescribe uniform to maintain academic standards.“Can't the college prescribe uniforms to maintain academic standards? Why can't it be for maintaining uniformity, discipline, uniforms are necessary? It can be a part of academic standards. Why can't it be construed as maintaining discipline and uniformity which are essential to maintain academic standards,” he asked..Can't the college prescribe uniforms to maintain academic standards and discipline?CJ Ritu Raj Awasthi.He also observed that the prohibition if any on headdress, will apply equally to all communities.“You say Article 15 prohibits discrimination on the grounds of religion. But the rule prohibits headdress to everyone, not only to one particular section,” he said.CJ Awasthi also observed that there is no express ban on hijab..To the State, respondentsCJ Awasthi posed some pressing questions to the State government as well.One of the first things he sought to know was regarding the legal sanctity of CDC.“What is the sanctity of College Development Committee under the scheme of the Act,” he asked Advocate General Prabhuling Navadgi.He also demanded what necessitated all these actions.“What is the background of the GO? What was the necessity of all this?"He also said that while the GO looked prima facie innocuous, it referred to judgments by other High Courts on hijab .“The GO is innocuous. But come to the earlier part of this GO where you have said consider these judgments about hijab. We want to know the necessity of placing these judgments (in the GO)… What was the necessity to say all this?” the CJ demanded..What is the sanctity of College Development Committee?CJ Ritu Raj Awasthi.He further asked whether the State would have no objection if a particular CDC allows hijab in college.“So, if the College Development Committee permits students to wear hijab, you have no objection?” he asked.“What is its import? What is your stand? Can hijab be permitted in institutions? If institutions permit, then you don't have any objection?” he further queried.“We will take a decision as and when such a situation comes up,” was AG Navadgi’s response.“You have to take a stand. It was argued by them to permit hijab of same colour of uniform. They have also argued that dupatta which is part of uniform be permitted to be worn above their heads? So can that be permitted?” the CJ pressed.“The stand of the State is that anything which introduces religious aspect should not be there.. My submission is to leave it to the institution,” AG Navadgi replied..If the College Development Committee permits students to wear hijab, you have no objection?”CJ Ritu Raj Awasthi.The CJ then sought to know what the purpose of hearing the case would be since the State has not prescribed anything.“So your stand is State has not said anything but has left it to the institution… So should Court now go into Article 25 violation etc if that is the stand of the State govt… You are saying college committee will decide. So are we supposed to see what they have done,” the CJ asked.In this regard, he also sought to know whether CDC would be subject to court orders.“Since they are not statutory bodies, can they be regulated by court order,” he questioned.On hijab getting protection under Article 25 even if it is not an essential religious practice (ERP), the CJ asked AG,“There was one argument by Sr. Adv Yusuf that even if it not essential religious practice, then also stopping hijab would violate Article 25(1) as it is also freedom of conscience.”.To the petitionersJustice Dixit asked pointed question on the aspect of whether wearing hijab is an ERP under Islam.“Is essential religious practice absolute or susceptible to regulation by law,” he asked Senior Advocate Devadatt Kamat.On inclusion of local Member of Legislative Assembly (MLA) as part of the CDC, the judge asked how that would be problematic.“Are not MLAs aware of Constitutional provisions? They will function according to it,” he said.He also said that the MLA is only one of the many members of the CDC.“Please kindly read, kindly do not assume so many things. It says X,Y,Z shall be members. Where is power to MLA (alone),” the judge asked.Justice Dixit further queried whether there are any judgments which say that representatives of people cannot be part of such a committee.“Can you give one judgment of High Courts or the Supreme Court that popular representative cannot be part of such committee,” Justice Dixit told Senior Counsel Kamat..One of the other important queries by Justice Dixit to the petitioners was on the interpretation of translation of GO which was in Kannada.The petitioner said that the ground invoked in GO to mandate uniform is ‘public order’ which is one of the grounds to restrict freedom of religion.Senior Advocate Kamat said that the term ‘sarvajanika suvyvasthe’ used in the GO means ‘ public order’. He also produced Kannada translation of Article 25 of the Constitution which also has ‘public order’ written as ‘sarvajanika suvyvasthe’.Justice Dixit, however, opined that term used in GO cannot be interpreted based on the translation of the same in the Constitution.“You can't read GO translations like statutes of Westminster. Common sense has to be applied…We are interpreting a GO. We cannot interpret a term in GO based on what is used in Constitution," he said..Justice Dixit also responded to Senior Advocate Ravivarma Kumar’s arguments that CDC actions amounted to exercising police powers.“What is this police powers. In police and military, I can understand calling it police powers. Prescribing it in educational institutions cannot be termed as police power. It is parental power. Judicial opinion is also contrary to what you are saying,” he said.Justice Dixit also asked “If a girl belonging to another community suffers from alopecia, and if she wears a headscarf she will not be permitted.”.To the StateJustice Dixit posed specific queries to the State regarding presence of MLA in CDC.“Their (petitioners') argument was that MLA is a political character. Should that character be involved in the administration of an institution,” he asked AG.“If the MLA and his nominee are holding president and vice president positions in the CDC, what role do the others have to play,” he sought to know..Another line of questions posed by Justice Dixit to State was regarding freedom of conscience under Article 25 and how it was different from freedom to practice religion.“How to ascertain conscience? I say saluting a symbol is contrary to my conscience?”In this regard, he also adverted to Constituent Assembly Debates and how freedom of conscience came to be included at the insistence of Dr. BR Ambedkar.“KT Shah and KM Munshi were against inclusion of conscience. Then Dr. BR Ambedkar suggested it because he said there are persons who do not believe in the existence of God or religion like Charvakas,” Justice Dixit remarked.Justice Dixit also had some thoughts on the kind of secularism practiced in India.“The secularism which the makers of our Constitution envisaged is not akin to the American Constitution. It is not a wall between church and government. We oscillates between ‘Sarva Dharma Samabhava’ on one hand and ‘Dharma nirapekshata’ on the other,” he stated."Our Constitution has not enacted what Karl Marx said, ‘that religion is the opium of the masses’,” he added..Indian secularism oscillates between ‘Sarva Dharma Samabhava’ on one hand and ‘Dharma nirapekshata’ on the other.Justice Krishna Dixit .Justice Dixit also seemed to disagree with the submission by the AG that if the court rules that hijab is part of ERP of Islam, all Muslim women would be forced to wear hijab including those who do not want to do so.“If in Hindu marriage, we hold tying of Mangalsutra is essential, it does not mean all Hindus in country should compulsorily wear Mangalsutra. We declare legal position and leave it there,” the judge said..If we hold tying of Mangalsutra is essential, it does not mean all Hindus in country should compulsorily wear MangalsutraJustice Krishna Dixit.Justice Khazi was largely silent through the hearing.One February 21, the 7th day of the hearing, she asked the AG whether the ERP test would also apply to freedom of conscience.“Is Essential Religious Practice also applicable to freedom of conscience,” she queried.Her one other query was a factual one put to Senior Advocate Sajan Poovayya who was appearing on behalf of CDC of one of the colleges.“Is this an all-girls institution or a co-ed school,” she asked to which Poovayya replied that it is an all-girls institution..Read Day 1 arguments here.Read Day 2 arguments here.Read Day 3 arguments here.Read Day 4 arguments here.Read Day 5 arguments here.Read Day 6 arguments here.Read Day 7 arguments here.Read Day 8 arguments here.Read Day 9 arguments here.Read Day 10 arguments here. Read Day 11 arguments here.
The hearing before the Karnataka High Court in the hijab case concluded on February 25, Friday..The hearing before the three-judge Bench of Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and JM Khazi lasted 11 days.The Bench on the very first day of the hearing also passed an interim order directing students not to wear hijab, saffron shawls (bhagwa) or use any religious flags while attending classes in Karnataka colleges which have a prescribed uniform in the interim.In this piece, we trace how the three judges responded to the arguments advanced by different parties..To the petitionersChief Justice (CJ) Awasthi was quite vocal from the beginning of the hearing. On the first day of the hearing before passing interim order, he told the petitioners:“You people should not insist for wearing all these religious things which are not conducive. We will restrain everyone (in the interim) from adopting all these practices,” he said.On Article 25, the Chief Justice specifically queried whether the Government Order (GO) of February which gives power to the College Development Committee (CDC) to prescribed uniform, actually restricts the fundamental right to practice religion under Article 25.“Whether by this GO, is there any restriction on fundamental rights,” he asked Senior Advocate Devadatt Kamat who was representing one of the petitioners.He also sought to know specifically what was the fundamental right the petitioners were claiming.“How can you insist on wearing hijab in an institution which has a uniform. What is this fundamental right you have is what we want to understand,” he said..He further asked whether the petitioner-students have been wearing headscarves for considerable time or whether they started wearing it recently as was alleged by respondents.“You are insisting on wearing a particular headdress in an institution which has a uniform. You have to establish what fundamental right is being infringed. Forget about what the State has said. Show right under Article 25(1),” he told Kamat during the rejoinder arguments.Kamat had also argued that Article 25 protects all practices and not necessarily ERP. In this case, the question of ERP need not be gone into since restriction imposed is not as per a valid law, Kamat had said.“You say it need not be ERP. We want to know what right has been infringed,” CJ Awasthi asked..We want to know what is the right that has been infringed?CJ Ritu Raj Awasthi.Regarding the GO and the power granted to CDC by it, CJ remarked that it does not mention anything about hijab but only entitles CDC to prescribe uniform.“The GO does not say about hijab. It only speaks about the uniform. That is provided under the (Karnataka Education) Act,” he said.One of the aspects argued by petitioners was on ‘public order’ as a ground taken by the State to issue the GO.The CJ, however, said that it is only an assumption by the petitioner.The CJ also opined as to whether it would not be permissible for CDC to prescribe uniform to maintain academic standards.“Can't the college prescribe uniforms to maintain academic standards? Why can't it be for maintaining uniformity, discipline, uniforms are necessary? It can be a part of academic standards. Why can't it be construed as maintaining discipline and uniformity which are essential to maintain academic standards,” he asked..Can't the college prescribe uniforms to maintain academic standards and discipline?CJ Ritu Raj Awasthi.He also observed that the prohibition if any on headdress, will apply equally to all communities.“You say Article 15 prohibits discrimination on the grounds of religion. But the rule prohibits headdress to everyone, not only to one particular section,” he said.CJ Awasthi also observed that there is no express ban on hijab..To the State, respondentsCJ Awasthi posed some pressing questions to the State government as well.One of the first things he sought to know was regarding the legal sanctity of CDC.“What is the sanctity of College Development Committee under the scheme of the Act,” he asked Advocate General Prabhuling Navadgi.He also demanded what necessitated all these actions.“What is the background of the GO? What was the necessity of all this?"He also said that while the GO looked prima facie innocuous, it referred to judgments by other High Courts on hijab .“The GO is innocuous. But come to the earlier part of this GO where you have said consider these judgments about hijab. We want to know the necessity of placing these judgments (in the GO)… What was the necessity to say all this?” the CJ demanded..What is the sanctity of College Development Committee?CJ Ritu Raj Awasthi.He further asked whether the State would have no objection if a particular CDC allows hijab in college.“So, if the College Development Committee permits students to wear hijab, you have no objection?” he asked.“What is its import? What is your stand? Can hijab be permitted in institutions? If institutions permit, then you don't have any objection?” he further queried.“We will take a decision as and when such a situation comes up,” was AG Navadgi’s response.“You have to take a stand. It was argued by them to permit hijab of same colour of uniform. They have also argued that dupatta which is part of uniform be permitted to be worn above their heads? So can that be permitted?” the CJ pressed.“The stand of the State is that anything which introduces religious aspect should not be there.. My submission is to leave it to the institution,” AG Navadgi replied..If the College Development Committee permits students to wear hijab, you have no objection?”CJ Ritu Raj Awasthi.The CJ then sought to know what the purpose of hearing the case would be since the State has not prescribed anything.“So your stand is State has not said anything but has left it to the institution… So should Court now go into Article 25 violation etc if that is the stand of the State govt… You are saying college committee will decide. So are we supposed to see what they have done,” the CJ asked.In this regard, he also sought to know whether CDC would be subject to court orders.“Since they are not statutory bodies, can they be regulated by court order,” he questioned.On hijab getting protection under Article 25 even if it is not an essential religious practice (ERP), the CJ asked AG,“There was one argument by Sr. Adv Yusuf that even if it not essential religious practice, then also stopping hijab would violate Article 25(1) as it is also freedom of conscience.”.To the petitionersJustice Dixit asked pointed question on the aspect of whether wearing hijab is an ERP under Islam.“Is essential religious practice absolute or susceptible to regulation by law,” he asked Senior Advocate Devadatt Kamat.On inclusion of local Member of Legislative Assembly (MLA) as part of the CDC, the judge asked how that would be problematic.“Are not MLAs aware of Constitutional provisions? They will function according to it,” he said.He also said that the MLA is only one of the many members of the CDC.“Please kindly read, kindly do not assume so many things. It says X,Y,Z shall be members. Where is power to MLA (alone),” the judge asked.Justice Dixit further queried whether there are any judgments which say that representatives of people cannot be part of such a committee.“Can you give one judgment of High Courts or the Supreme Court that popular representative cannot be part of such committee,” Justice Dixit told Senior Counsel Kamat..One of the other important queries by Justice Dixit to the petitioners was on the interpretation of translation of GO which was in Kannada.The petitioner said that the ground invoked in GO to mandate uniform is ‘public order’ which is one of the grounds to restrict freedom of religion.Senior Advocate Kamat said that the term ‘sarvajanika suvyvasthe’ used in the GO means ‘ public order’. He also produced Kannada translation of Article 25 of the Constitution which also has ‘public order’ written as ‘sarvajanika suvyvasthe’.Justice Dixit, however, opined that term used in GO cannot be interpreted based on the translation of the same in the Constitution.“You can't read GO translations like statutes of Westminster. Common sense has to be applied…We are interpreting a GO. We cannot interpret a term in GO based on what is used in Constitution," he said..Justice Dixit also responded to Senior Advocate Ravivarma Kumar’s arguments that CDC actions amounted to exercising police powers.“What is this police powers. In police and military, I can understand calling it police powers. Prescribing it in educational institutions cannot be termed as police power. It is parental power. Judicial opinion is also contrary to what you are saying,” he said.Justice Dixit also asked “If a girl belonging to another community suffers from alopecia, and if she wears a headscarf she will not be permitted.”.To the StateJustice Dixit posed specific queries to the State regarding presence of MLA in CDC.“Their (petitioners') argument was that MLA is a political character. Should that character be involved in the administration of an institution,” he asked AG.“If the MLA and his nominee are holding president and vice president positions in the CDC, what role do the others have to play,” he sought to know..Another line of questions posed by Justice Dixit to State was regarding freedom of conscience under Article 25 and how it was different from freedom to practice religion.“How to ascertain conscience? I say saluting a symbol is contrary to my conscience?”In this regard, he also adverted to Constituent Assembly Debates and how freedom of conscience came to be included at the insistence of Dr. BR Ambedkar.“KT Shah and KM Munshi were against inclusion of conscience. Then Dr. BR Ambedkar suggested it because he said there are persons who do not believe in the existence of God or religion like Charvakas,” Justice Dixit remarked.Justice Dixit also had some thoughts on the kind of secularism practiced in India.“The secularism which the makers of our Constitution envisaged is not akin to the American Constitution. It is not a wall between church and government. We oscillates between ‘Sarva Dharma Samabhava’ on one hand and ‘Dharma nirapekshata’ on the other,” he stated."Our Constitution has not enacted what Karl Marx said, ‘that religion is the opium of the masses’,” he added..Indian secularism oscillates between ‘Sarva Dharma Samabhava’ on one hand and ‘Dharma nirapekshata’ on the other.Justice Krishna Dixit .Justice Dixit also seemed to disagree with the submission by the AG that if the court rules that hijab is part of ERP of Islam, all Muslim women would be forced to wear hijab including those who do not want to do so.“If in Hindu marriage, we hold tying of Mangalsutra is essential, it does not mean all Hindus in country should compulsorily wear Mangalsutra. We declare legal position and leave it there,” the judge said..If we hold tying of Mangalsutra is essential, it does not mean all Hindus in country should compulsorily wear MangalsutraJustice Krishna Dixit.Justice Khazi was largely silent through the hearing.One February 21, the 7th day of the hearing, she asked the AG whether the ERP test would also apply to freedom of conscience.“Is Essential Religious Practice also applicable to freedom of conscience,” she queried.Her one other query was a factual one put to Senior Advocate Sajan Poovayya who was appearing on behalf of CDC of one of the colleges.“Is this an all-girls institution or a co-ed school,” she asked to which Poovayya replied that it is an all-girls institution..Read Day 1 arguments here.Read Day 2 arguments here.Read Day 3 arguments here.Read Day 4 arguments here.Read Day 5 arguments here.Read Day 6 arguments here.Read Day 7 arguments here.Read Day 8 arguments here.Read Day 9 arguments here.Read Day 10 arguments here. Read Day 11 arguments here.
