Hijab must pass Constitutional Morality test in Sabarimala, Triple Talaq rulings: State to Karnataka High Court

The Karnataka government on Friday told the Karnataka High Court that that the practice of wearing hijab must pass the test of constitutional morality laid down by the Supreme Court in the judgments in Sabarimala and Triple Talaq cases..Advocate General Prabhuling Navadgi made arguments to that effect on behalf of the State, before the Bench of Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and JM Khazi in 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)..Referring to the Supreme Court's decisions in the Sabarimala and Triple Talaq cases, AG Navadgi said,"Practice of wearing hijab must pass the test of constitutional morality and individual dignity.".During his submissions, he also said that the government was "pained" at how it was being berated in the backdrop of the hijab ban controversy."We are pained at the way the government has been berated in these proceedings and how it is alleged we are dictated by some other reasons and that we are discriminating against girls and women. With absolute humility we say, State believes in treating everyone equally.".At the beginning of today's hearing, Senior Advocate Ravivarma Kumar suggested that live streaming of the case on YouTube be suspended, given that students are put to "untold hardship and misery." However, Chief Justice Awasthi said,"Let people hear what is the stand of the respondents also."Advocate Sirajudin Ahmad, appearing for one of the petitioners informed the Court that some anti-social elements were trying to restrain women from wearing hijab. "You should lodge an FIR against them," CJ Awasthi suggested.Ahmad then argued that schools that were previously allowing Muslim students to wear hijab were now not allowing them to do so."After the Court's order, now every college is not allowing hijab, even those which used to allow. Your lordships order not clearly understood," he said.After the Court pointed out defects in his petition, Ahmad was given liberty to file a fresh plea..At the start of his arguments, AG Navadgi said he would broadly cover three points raised by the petitioners:- The Government Order dated February 5, 2022 has been called into question. I submit it is in consonance with the Karnataka Education Act; - We take the stand that hijab is not an essential religious practice of Islam;- Petitioners argued that tight to wear hijab can be traced to Article 19(1)(a) and prevention of the same violates Article 19(1)(a). Our submission is that it does not do so..He went on to trace the background of the GO that effectively banned students from wearing hijab to classes."The prescription of uniform has been there for some time, from 2013. There was a resolution of the College Development Committee (CDC), to change the uniform of the girl students. The endeavour is to show that there was a prescription on uniform in the year 2013-14 itself."As regards the present scenario, the AG laid out the following scenario:- After CDC passed a resolution prescribing uniform on January 1 this year, students insisted on wearing hijab and did not abide by the resolution; - On January 25, another resolution was passed suggesting that status quo be maintained as a High Level Committee appointed by the State deliberates on the issue;- On January 31, a third resolution was passed stating that children should not wear hijab and if parents send girls with hijab, disciplinary action will be taken. This resolution is not under challenge before this Court or any other forum;- As protests against the rule intensified, the GO was issued on February 5..AG Navadgi argued that the GO was innocuous in nature and does not affect any of the petitioners' rights. He added that the State was not directly interfering in the issue, and only took the stand that what uniform the CDC has prescribed, should be followed."The draftsman (of the GO) has become enthusiastic and said public order...The question of proscribing or prescribing hijab does not arise. The State has given complete autonomy to the CDC and to private management for private colleges," he said.Chief Justice Awasthi then asked,"But come to the earlier part of this GO where you have said consider these judgments about hijab. What was the necessity to say all this?"The AG maintained that the State has consciously kept itself away from the issue."So if the CDC permits students to wear hijab, you have no objection?" the Court asked. Navadgi replied,"State has revisionary powers under Section 131. If in future some student or authority has a grievance that it might result in something, we may or may not take a decision."CJ Awasthi then asked,"Wasn't the GO premature? On one hand you are saying a High Level Committee is to be constituted, then on the other hand you issue these GOs.""The government, considering exigencies, issued these orders under Section 133 (of Karnataka Education Act). These are unusual situation which came up," was the AG's response.The AG took the Court through the provisions of the Karnataka Education Act. Referring to Section 133, which gives the State government the power to issue directions to any educational institution, the AG said,"None of the colleges have come before Court saying this is without authority. Students have come before the Court saying that it is without authority. The challenge should fail on that ground alone."As regards the composition of the CDC, the AG said that it was representative body and that there was no restriction on a Member of Legislative Assembly (MLA) being a part of it..The Court adjourned the matter to Monday, February 21..On Thursday, the Bench was told that banning hijab would tantamount to banning the Quran. Party-in-person Dr Vinod Kulkarni prayed for an order to allow the girl students to wear hijab on Fridays, which is an auspicious day for Muslims, and during the coming month of Ramzan. The Court also dismissed a petition for not being in compliance with the High Court's Rules on Public Interest Litigation..[Hijab Row] Ban on hijab is ban on Quran: Party-in-person to Karnataka High Court.The petitioners - Muslim girl students from various colleges in Karnataka - approached the High Court after they were denied permission to attend classes on account of wearing hijab. Among the grounds cited in the petition is that the freedom of conscience and the right to religion are both guaranteed by the Constitution, despite which the students were singled out arbitrarily for belonging to the Islamic faith.Further, the manner in which they were ousted created a stigma against them, affecting their mental health as well as their future prospects, it was submitted. It was also 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.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..Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.