[Hijab ban] MLA committee cannot decide on public order, fundamental rights: Petitioners to Karnataka High Court

In the hijab ban hearing matter on Monday, the Karnataka High Court was told that college development committees comprising Members of Legislative Assembly (MLAs) could not decide on issues of public order and fundamental rights..Senior Advocate Devadatt Kamat made submissions to this effect before the Bench of Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and JM Khazi."They are leaving it to College Development Committee to decide whether any exception should be made for hijab.. Leaving it to college committee is totally illegal. Public order is State's responsibility," he argued..The Court was hearing a batch of petitions filed by Muslim girl students in the State claiming that they were not being allowed to enter colleges on account of the government order (GO) which effectively bans the wearing of hijab (headscarves)..Kamat stated that the GO issued by the State on February 5 was violative of Article 25 of the Constitution (right to freedom of religion) and was passed without application of mind.Chief Justice Awasthi then asked whether Article 25 was absolute. Kamat then said that it was subject to restrictions like public order, morality, health etc. At this point, the Chief Justice asked,"What is public order?...We are trying to understand whether by this GO, the State has restricted Article 25 or not.""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, [it] is no ground to restrict fundamental rights of that section," was Kamat's response..He went on to highlight that the petitioners have been wearing hijabs with the same colour as the prescribed uniform, since their admission to the colleges."It is not our case that we will wear some other colour. We want to cover our heads using headscarf of same colour as that of uniform," Kamat said.While referring to judgments of the High Courts of Kerala, Bombay and Madras that the State government had relied on to pass the GO, Kamat told the Bench that there is no authoritative pronouncement saying that wearing of hijab is not an essential practice of Islam.Justice Dixit then posed the question as to whether essential religious practices are subject to regulation by the State. In response, Kamat said,"Article 25(2) allows State to regulate religious practice, economic, financial, political or other secular activity and not core religious practice...a core religious practice can be regulated by State if it offends public order.".Kamat further questioned the authority of the college development committee (CDC) to determine what is a threat to public order. "Public order is an executive function, not of an MLA committee...I can understand the State doing it. But can a committee do it."Chief Justice Awasthi pointed out that the GO only talks about uniform to be prescribed by CDC. Kamat countered that the GO also stated that hijab was not essential to Islam. He further argued,"Today what is it that stops State from permitting me to exercise religious freedom? They say public order.""You are assuming that...the State is yet to take a stand," CJ Awasthi replied."If that is the case, then they cannot restrict it on public order. I would be happy if the State says there is no public order issue. Then GO has to go," Kamat said..Towards the end of the hearing, an advocate mention an application to restrict the media from making comments on the case. However, the Bench said it could only perhaps stop live streaming of the case."That is in our hands but we cannot restrict media," Chief Justice Awasthi said.The matter will be heard at 2:30 pm tomorrow..On February 10, the Court had passed an interim order barring students from wearing hijab, saffron shawls (bhagwa) or use any religious flags while attending classes in Karnataka colleges, till the matter is decided."It hardly needs to be mentioned that ours is a country of plural cultures, religions & languages. Being a secular State, it does not identify itself with any religion as its own. Every citizen has the right to profess & practise any faith of choice, is true. However, such a right not being absolute is susceptible to reasonable restrictions as provided by the Constitution of India," the Court noted..The petitioners had approached the Supreme Court against this interim order. The appeal was mentioned before Chief Justice of India NV Ramana on Friday, who said that the top court will hear the matter at an appropriate time..The first petitioner alleged that Government PU College, located in Udupi, stopped her and other female Muslim students from attending classes on the ground that they wear a hijab (headscarf). She contended that the freedom of conscience and the right to religion are both guaranteed by the Constitution, despite which she and other girl students were singled out arbitrarily for belonging to the Islamic faith.Further, the manner in which they were ousted created a stigma against them among her batchmates, affecting their mental health as well as their future prospects, it was submitted. The plea claimed that wearing of hijab was an essential part of Islam and enjoys protection under Article 25(1) of the Constitution, which confers the right to freely profess, practise and propagate religion.Most recently, two more Muslim students pursuing the BBA (Bachelor of Business Administration) course at Bhandarkar College of Art and Science in Kundapura approached the Court with a similar grievance..Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.