Permitting Hijab A National Practice; Even Kendriya Vidyalayas Allow; State Can't Say It's Not Essential : Kamat To Karnataka HC

A Full Bench of the Karnataka High Court on Monday heard extensive arguments on behalf of the petitioner, a Muslim girl student who challenged the action of a government college in denying her entry for wearing a hijab (headscarf). 

Last Friday, the Full bench had restrained students from wearing any sort of religious clothes in classrooms, regardless of their faith, while the matter is pending hearing. The interim order is only applicable to those institutions which have prescribed a uniform dress code.

At the outset of the hearing on Monday, the Chief Justice made a request to all media houses to be more responsible and ensure that they make an effort to maintain peace and tranquility in the State. "We are doing the live-streaming. Our only request to the media is, be more responsible. You are the fourth pillar", the Chief Justice further remarked. 

Addressing the concern raised by a counsel appearing for an intervenor that the Court should restrict media houses and should also prohibit any discussion on social media pertaining to the ongoing case in the wake of the upcoming elections in other States, the Chief Justice remarked, 

"We have made appeals to media. We can put off the live streaming if you all say. That is in our hands. We can't stop the media. As far as elections, you are not a voter of those states."

The hearing will continue tomorrow, at 2.30 pm.

Senior advocate Devadatt Kamat appearing on behalf of aggrieved students made extensive arguments on Monday. It is the petitioner's case that the right to wear hijab is an essential religious practice under Islam, and the State is not empowered to interfere with such rights under Article 14,19 and 25 of the Constitution.

Courtroom exchange 

State government's declaration that wearing headscarf is not protected under Article 25 is totally erroneous: Kamat 

Referring to the Government order of February 5, 2022, senior advocate Devadatt Kamat made two-fold submissions. He underscored that the declaration made by the State government that wearing of headscarf is not protected by Article 25 of the Constitution is 'totally erroneous'. It was also submitted that the conduct of the State government in delegating to the College Development Committee (CDC) to decide whether to allow headscarfs or not is 'totally illegal'. 

The Court was further apprised that 'public order' is the only restriction that can be imposed on the fundamental right as guaranteed under Article 25 of the Constitution in the context of hijab (as it does not offend the other specified grounds of 'morality' and 'health'). Opining that maintenance of 'public order' is the responsibility of the State, the senior counsel further remarked, "Can a College Development Committee, consisting of MLA and subordinates, decide if this exercise of right is permissible?"

At this point, the Chief Justice enquired, "the question is whether this right conferred under Article 25 is an absolute right or relative subjective to certain restrictions?" In response, the senior counsel averred  "Article 25 rights are not subjected to reasonable restrictions as under Article 19."  He reiterated that in this context, the only ground available to the State was "public order".

Senior counsel Kamat further submitted that public order is not a mere law and order disturbance. When there is a heightened sense of law and order, it will be public order, it was submitted further. He further stated that the State has a 'positive duty' to ensure that people can exercise their fundamental rights and that no restriction can be imposed on such fundamental rights merely because a set of people objects to it. 

GO is unlawful as it delegates responsibility to CDC to decide whether headscarves should be allowed: Kamat

During the hearing, the Chief Justice questioned further, "Whether by this GO, State has put any prohibition on wearing head scarf?" Responding in the affirmative, the senior counsel reiterated that the Government order is unlawful so far as it delegates the matter to the CDC in taking a decision either to allow or prohibit headscarves. 

To such a submission, Justice Krishna Dixit orally observed that the word "law" as envisaged under Article 25 of the Constitution can be interpreted from its definition as enumerated under Article 13(3) of the Constitution. The Judge remarked that 'law' under Article 13(3) also includes byelaws, notifications etc.

Responding to such an observation by the Bench, the senior counsel acknowledged that 'law' as envisaged under Article 13 of the Constitution also includes delegated legislation. "It includes delegated legislation which flows from primary legislation. I bow down to it", senior counsel Kamat responded to Justice Dixit's observation. However, Kamat added that "public order" was an essential State function and hence the CDC cannot be delegated to determine if hijab will violate public order.

Wearing hijab is essential religious practice: Kamat

Reliance was also placed on a Kerala High Court judgment in 2016, which declared hijab as an essential religious practice of Islam and allowed two Muslim girl students to wear it while appearing for the CBSE All-India Pre-Medical Entrance Test (AIPMT). Furthermore, the senior counsel also made a reference to Chapter 24 known as 'The Light" in verse 31 in Holy Quran which allegedly makes a reference to 'Khumur' or a 'headscarf'. 

At this point, the Chief Justice pertinently enquired, "What is "Khumur"? Does it mean hijab?". The senior counsel remarked that 'Khumur' means a headscarf and further underscored that as laid down in the aforementioned Kerala High Court judgment if there is a practice which a believer thinks is part of his faith and that practice by itself does not violate public order or infringes upon anyone's freedom then the right to perform such a religious practice must be protected. Accordingly, it was submitted that the test of religious practice will not arise in such circumstances. 

Students not insisting on a different uniform, they want to wear headscarves of the same colour as the uniform: Kamat 

The Chief Justice further enquired, "Since when have the students been wearing hijab?" In response, it was submitted that the aggrieved students have been wearing hijab since admission for the past two years. "This is not a case where students are insisting for a different uniform. They are only saying they will cover the head with the same colour of the uniform that is prescribed", senior advocate Kamar averred further. 

It was also pointed out to the Court that Kendriya Vidyalayas permit Muslim girls to wear a headscarf of the uniform colour. It was also submitted that permitting Muslim girls to wear hijab and Sikh students' to wear head gear is a national practice in adherence to Article 25 of the Constitution. 

Reference was also made to the Madras High Court judgment in M.Ajmal Khan v. Election Commission wherein the High Court had observed that there is almost unanimity amongst Muslim scholars that purdah is not essential but covering of head by scarf is obligatory. The senior counsel also submitted that in this case, the High Court had referred to a Malaysian High Court judgment. 

To this, the Chief Justice enquired, "You referred to a HC judgment which referred to an apex court of an Islamic country that wearing hijab is essential? You have any judgment of any other Islamic country or secular country taking a divergent view?" In response, the senior counsel averred that according to his knowledge, there is no contrary judgement. 

The present case is different from High Court precedents relied upon in GO: Kamat

Referring to the judgments referred to in the impugned Government Order, such as Kerala High Court judgment in Fathima Thasneem v. State of Kerala or Bombay High Court judgment in Fatheema Hussain Sayed v. Bharat Education Society, the senior counsel averred, "Both judgements that GO cites do not apply in our case. One is in a minority institution the other is in an all-girls school. Third judgement is of Madras HC judgement, this has nothing to do with Article 25." Thus, it was stated that by referring to these judgments, the government order has committed a 'fatal error'. 

State is an 'outside authority', cannot decide whether headscarf is essential religious practice: Kamat

Reliance was also placed on the Supreme Court judgment in The Commissioner, Hindu Religious Endowments, Madras v Shri Lakshmindar Tirtha Swamiyar of Shri Shirur Mutt to contend that even matters of dress can form an integral part of religion in terms of Article 25 of the Constitution. Reference was also made to the Supreme Court judgment in Ratilal Panachand Gandhi v. State of Bombay  wherein the Apex Court had underscored, "No outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner"

Accordingly, the senior counsel argued, "State is an outside authority, it cannot say that wearing a headscarf is essential practise or not. It has to be seen from the view point of a believer." It was further stated that a College Development Committee does not have any statutory basis. Thus, it was argued that since the CDC does not have the power to regulate public order.

At this point, Justice Dixit questioned, "Whether Essential Religious Practice is absolute or susceptible to regulation by state by law?" In response, the senior counsel submitted that the very doctrine of essential religious practice connotes that it is not related to economic, financial, political or secular activity. It was further submitted that pursuant to Article 25 of the Constitution, even a core religious practice, if it offends public order, morality and health, it can be regulated.

Quoting from the Supreme Court judgment in Bijoe Emmanuel & Ors v State Of Kerala, the senior counsel further averred, "The question is not whether a particular religious belief or practice appeals to our reason or sentiment, but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion."

Whether all Quranic injunctions are essential practices

Justice Dixit asked during the hearing whether all that stated in Holy Quran would amount to essential religious practices and whether all Quranic injunctions are inviolable.

However, the senior counsel submitted that he would not like to address whether every tenet mentioned in the Holy Quran forms a part of 'Essential Religious Practice' and further submitted that in the instant case, wearing of hijab is an essential religious practice. "The larger question whether all Quranic injunctions are essential religious practices does not arise in this case. I beseech your lordships to not get into that issue", the senior counsel remarked further. 

The Court was further apprised that since the Holy Quran itself makes a reference to wearing of headscarf, it is not essential to refer to any other authority and accordingly such a practice should be protected under Article 25 of the Constitution. 

Delegation to CDC an abdication of state responsibility

Referring to the delegation to the CDC as an 'abdication of State responsibility', the senior counsel further underscored, "This whole delegation to CDC to decide whether to permit of wearing of headscarf or not is a total abdication of state responsibility..Constitution says Article 25 will be subject to public order. State says public order will be what is decided by an MLA committee. Public order is an essential state function. Can't be left to MLA Committee?"

Refuting such a submission, Justice Dixit remarked that the CDC does not only include legislators and that MLAs do not have veto powers. Furthermore, Justice Dixit questioned further, "Can you cite any judgment of Supreme Court that even remotely says that an MLA can't be part of a committee?" In response, the senior counsel remarked, "I am not saying elected representatives cannot be part of committee. I am saying public order is an essential police function, can't be left to committee."

Ground of 'public order' not mentioned in GO: Court 

The Bench also expressed reservation to the submission of the senior counsel that the State government in the impugned government order had cited 'public order' as a ground to restrict the right to wear a hijab in educational institutions. The Chief Justice remarked to such a submission, "They have not said so...You are assuming it."

The Advocate General also submitted that senior counsel Kamat's translation of the government order was not accurate and that such an incorrect translation may be a bonafide mistake. In this regard, the Chief Justice further underscored, "GO cannot be interpreted like a statute. We have to use common sense. Words do not have static meaning. We have to see the company the words keep."

The Bench further observed that they would verify the accurate translation of the impugned government order which has been written in the Kannada language. 

 Case so far

On Friday, the Full Bench after hearing both sides passed an interim order restraining the students from wearing any sort of religious clothes in classrooms, regardless of their faith, till disposal of the matter.

(Edited and compiled by Akshita Saxena and Aaratrika Bhaumik)

Live Updates of the hearing available here