[Hijab Row] India is not Hindu rashtra or Islamic republic: Petitioner to Karnataka High Court

On day 10 of the hearing in the hijab case before the Karnataka High Court, one of the petitioners argued that India is neither a Hindu rashtra nor an Islamic republic but a democratic, sovereign, secular, republic where rule of law must prevail..Senior Advocate AM Dar appearing for a college student, said that wearing hijab is mandatory in Islam and public order will not be disturbed merely because a Muslim girl wears hijab. "This is not a Hindu rashtra or an Islamic republic. It is a democratic, sovereign, secular, republic where rule of law must prevail," Dar said.He emphasised that mere wearing of hijab will not cause any public order issue warranting a restriction under Article 25(1) of the Constitution. "If someone desecrates image of Lord Rama or any Hindu goddess then it is public order issue. If you desecrate the image of another religion, then it hurts feeling and it can be public order. But simple covering head, how does it cause public order issue," Dar demanded.Dar was arguing before the Bench of Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and JM Khazi which was hearing batch of petitions filed by Muslim girl students in the State claiming that they were not being allowed to attend classes on account of the government order (GO) which effectively bans the wearing of hijab (headscarves).The Court indicated during today's hearing that it would finish hearing the parties by Friday, February 25.Senior Advocate Devadatt Kamat in his rejoinder arguments, said that the State was citing Constitutional Morality to restrict choice, contrary to how the concept was used in pro-choice decisions of the Supreme Court.During an earlier hearing, the State government had argued that the practice of wearing hijab must pass the test of Constitutional Morality laid down by the Supreme Court in the Sabarimala and Triple Talaq judgments. Countering this, Kamat said,"It is not a restriction on fundamental right. It is a restriction on State's power. All the decisions - (which cited Constitutional Morality) Sabarimala, Navtej are all pro-choice decisions. Today, they are saying use Constitutional Morality to defeat choice.".Senior Advocate Guru Krishnakumar, appearing for one of the respondents made his submissions before the Bench today. He argued:- The moment a student comes to an educational institution and partakes in secular education, any regulation which seeks to achieve non-discrimination cannot be questioned on the premise of Article 25;- The purpose of uniform itself is to completely remove the background of the student - his caste, colour, creed, religion are completely obliterated;- When dealing with such matters, Constitutional courts do not exercise ecclesiastical jurisdiction when claim of essential religious practice is made; - The goal of the government order (GO) is to regulate activity part of pursuing education secular activity and not to interfere with religious freedom per se..Senior Advocate Kirti Singh then sought to make submissions on behalf of the All India Democratic Women's Association (AIDWA). However, asked whether the organisation was registered. Chief Justice Awasthi said,"What is the constitution of the committee which has taken the decision (to move the High Court). The resolution does not say it. You have to annex the resolution and the proceedings which disclose the constitution of the committee and the authorization of the President to file the PIL."Even as Singh claimed that the AIDWA had members who were affected by the GO and that it was a genuine party to the matter, the Chief Justice said,"The petition would not be maintainable when the aggrieved persons are already before the Court.".Senior Advocate AM Dar then made arguments on behalf of a student in a private institution who was denied entry for wearing hijab. Citing verses from the Quran, he submitted:- Hijab is mandatory in Islam. It is the last commandment from Allah. It has come in fourth hijri. By that time Quran was almost complete;- We have to cover the chest, it is mandatory. It is a question of life and death for us. We do not want to destroy anything secular;- Receiving education is also an essential part of Islam.Dar went on to address the Constitutional aspects of the issue, arguing:- We have protection under Article 25, and also the Preamble, which emphasizes on liberty of thought, expression, belief, faith and worship;- Scarf is a small issue for such a big country. Our heart should be open, it should be wide. Scarf enhances reputation of the lady, it purifies and gives modesty;- It does not cause public order issue. It is not causing any immorality;- This is not a Hindu rashtra or an Islamic republic. It is a democratic sovereign secular republic where rule of law must prevail;- Interim order is unconstitutional as it suspends fundamental rights. This is a question of life and death. We will have to leave our education because we cannot compromise on these principles..Next, Kamat made his rejoinder submissions on behalf of the petitioners. At the outset, he argued,"I have specifically pleaded that we have been using a headscarf right from our admission and till the GO came, and we were stopped thereafter. There is no reply or rebuttal to this averment."He made it clear that his primary challenge was to the GO. In this context, he said,"AG has clearly said that the 3 judgments relied by GO on hijab is not the purport of the order. He said it might have been result of over-enthusiasm by drafters and it might not have been required...this part of the GO has to go."If the judgments are irrelevant, what is the material to arrive at this prima facie understanding that hijab is not a part of fundamental rights, he questioned.Referring to the State's stand that it has given CDCs the power to prescribe uniform in colleges and would not interfere in the same, Kamat said,"By this GO, the superior authority says to subordinate authority, 'you do as you want, but hijab is not part of Article 25.' That is not permissible.".Kamat then challenged the vesting of executive and statutory functions in the CDC. He submitted,"They have argued that we have not challenged 2014 circular. I do not need to challenge it. As long as circular which prescribes CDC remains marga darshak mandal, I don't have problem. Let the CDC guide the college, the MLA can be a guiding force. But the problem is when you invest CDC with statutory functions."CJ Awasthi then asked,"How can you insist on wearing hijab in institution which has a uniform? What is this fundamental right you have?""I would like to differ slightly in approach. Before Your Lordships question me on where is my right, I would ask myself, where is the restriction, because 25(2) is very clear on what can be restricted," he replied, adding that the right to wear hijab stemmed from the Quran.He went on to argue,"ERP is not a restriction on my fundamental right. ERP is a restriction on State's power to interfere with a religious practice. The question which would fall first for consideration is - where is the restriction?"Further, he pointed out that the Karnataka Education Act is not a measure of social welfare or reform for the purpose of Article 25(2) of the Constitution..On the petitioners' right to education, Kamat argued,"If this rule is leading to a situation that people cannot access education of the State, it is a challengeble under Article 21A."On whether he felt that wearing of hijab was an essential religious practice of Islam, the Senior Advocate said,"There is no doubt that this is an ERP. But I am also saying that the GO which puts the restriction is illegal. In the absence of valid restriction it is strictly not necessary for the Court to go into ERP. But if Court does it, then I say it is ERP."Concluding his submissions, Kamat said,"The way State has implemented a good Constitution, it has been totally frustrated. But I am equally sure we are in the hands of a Constitutional court and we will make Constitution work and justice will prevail.".The matter will be heard at 2:30 pm on Friday..On Wednesday, the College Development Committee (CDC) submitted that education is secular activity in which religion has no role to play.Senior Advocate Sajan Poovayya, appearing for the CDC, argued,"If they are getting public instruction from the State, they cannot insist on wearing religious attire even if they show it is essential religious practice."He added,"Because Muslim child is wearing hijab we now have a situation where Hindu child is saying he wants to wear saffron scarf. Where is the end to it?".[Hijab Row] Because Muslim child is wearing hijab, Hindu child wants to wear saffron scarf: College 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.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.Most recently, a plea was filed before the High Court against more than 60 media houses seeking directions to restrain them from chasing and videographing students and teachers who are on their way to schools and colleges wearing hijab.Another plea alleged that the hijab controversy in the State is a creation of "tool kit" which has plans to create disturbance and anarchy and in the country and bring down the government in power at the Centre.

[Hijab Row] India is not Hindu rashtra or Islamic republic: Petitioner to Karnataka High Court

Murali Krishnan

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