[Hijab row] Women cannot be subjected to compulsion to wear any dress: State to Karnataka High Court

The Karnataka High Court was told by the State government on Tuesday that deeming wearing of hijab as an essential religious practice of Islam would compel Muslim women to wear a particular dress..Advocate General (AG) Prabhuling Navadgi argued that if wearing of hijab becomes religious sanction by way of a Court order, Muslim women would become obligated to wear it including those who do not want to wear it, and the element of choice will go away."You meant to say if Court holds that it is an essential religious practice, then Muslim women who do not wear it, it might amount to lowering their dignity?" the Court asked. The AG replied in the affirmative. "It hits at the liberty of that individual. The choice to wear what we want and choice not to wear what we do not want. Every woman of every faith has that choice. There cannot be religions sanction by way of judicial declaration," he said. .The Bench of Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and JM Khazi 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)..Today, AG Navadgi resumed his submissions on the point that wearing of hijab was not an essential religious practice of Islam."If it is not obligatory it is not compulsory. What is not compulsory is not essential. Therefore, it does not fall within the realm of essential religious practice," he said.He contended that the stand of the petitioners that the right to wear hijab is part of the right to freedom of speech and expression under Article 19(1)(a), was "mutually destructive.""If their argument is accepted, then persons who do not wish to wear it would have fundamental right not to wear it. That means element of option is there...You cannot argue both Article 25 and Article 19(1)(a)...They are mutually destructive."Chief Justice Awasthi then asked,"Suppose if someone wants to wear it under Article 19(1)(a) and you are restraining it, then are you not restricting their fundamental right?"Reiterating that there is no hijab ban in the country, Navadgi said,"The right to wear hijab under 19(1)(a) is subject to reasonable restrictions under 19(2). In our case, Rule 11 (of the Karnataka Education Rules) places reasonable restriction for institutional discipline."He also clarified that there is no restriction on Muslim girl students wearing hijab on campus."It is only in the classroom and during class hours. It is uniformly applicable to all, irrespective of religion.".Concluding his submissions, Navadgi asked the Court whether in light of the Sabarimala verdicts and others, hijab can be accepted in schools on point of Constitutional morality."Ultimately, if someone is coming to the Court for declaration that we want every woman of a particular faith to wear that, would it not violate the dignity of that person whom we are all subjugating," he said.Justice Dixit at this point said,"If in a 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.".On the point of the Sabarimala verdict, the Court asked whether the review petitions in that case have been decided."On 7 questions, matter has been referred to larger Bench. But the Sabarimala judgment is law as of today," the AG said.However, CJ Awasthi expressed concerns, saying."That is correct; but before us too, there are issues which would touch upon questions referred to larger bench in Sabarimala.".Senior Advocate R Venkataramani, appearing for one of the teachers of the colleges was next to make arguments. He said,"As a teacher, I would love to have a free mind in the class. Any measure on the part of the State and the part of the school to bring in discipline - as long as there is neutrality - different spaces in the community need public order."On the arguments made on Article 25 and essential religious practice, he said,"State should not enter into matters of what constitutes religion whatever is essential and not essential. State will come in when it collides with public order, morality or health."On the point of freedom of expression under Article 19(1)(a) cited by the petitioners, he said,"Freedom of expression does not mean we have to back to dark ages. We want to go ahead and not go back to dark ages.".Senior Advocate SS Naganand appeared for a government pre-university college. He contended that the petitions- girl students did not wear the hijab previously, and that the parents of the girls had asked the teachers to ensure that the girls should not be involved in singing, dancing and such activities."I don't know if they mean Muslim girls should not sing? If national anthem is sung, should they not sing? Is it against Islam? If they are taught devotional songs about country, mother India, should they not sing?" he asked.Citing examples across religions, Naganand attempted to make a distinction between essential religious practice and cultural requirement."Under Islam you have to pray. You can pray. But if you put a loudspeaker and play on high volume at 5 am, I can say I don't want to be woken up in morning. So, if in practicing your religion you are coming in the way of other people's peace, then where does the line lie?".Arguments in the matter will continue at 2:30 pm on Wednesday..On Monday, AG Navadgi told the Court that the 2018 Sabarimala verdict of the Supreme Court which lays down how to determine essentiality of a religious practice, is currently the law of the land on this issue.Relying on court decisions, he enumerated the requirements for a religious practice to be deemed essential.He went on to say that whenever reliance was placed on the Quran to show that certain practices were essential, in at least four instances, the Supreme Court negated it..[Hijab Row] Supreme Court's Sabarimala judgment on Essential Religious Practice test is law of the land: State 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..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.