Hijab Not Essential Practice Of Islam, Karnataka AG Says; What Was Necessity Of Saying This In GO, Asks High Court?

A Full Bench of the Karnataka High Court today heard Advocate General Prabhuling Navadgi on behalf of the State, in the petitions filed by Muslim girl students, who have challenged the action of a government college in denying their entry for wearing a hijab (headscarf).

(i) wearing of hijab does not fall within the essential religious practise of Islam;

(ii) right to wear hijab cannot be traced to freedom of expression under Article 19(1)(a) of the Constitution;

(iii) Government Order dated February 5 empowering College Development Committees (CDCs) to prescribe uniform is in consonance with the Education Act.

He stated that hijab certainly comes under the manifest exercise of the right to practice religion. However, on a specific query by the Bench if hijab forms part of the 'essential religious practice', the AG responded in the negative.

He further submitted that the practise of wearing hijab must pass the test of 'Constitutional morality' and individual dignity as expounded by the Supreme Court in the case of Indian Young Lawyers Association v. State of Kerala (Sabarimala judgment) and Shayara Bano v. Union of India (Triple Talaq judgment).

The arguments will continue on Monday.

Fundamental Rights under Article 25 subject to reasonable restrictions: State

So far as protection under Article 25(1) of the Constitution is concerned, the AG mentioned that the provision starts with a non-obstante clause. Further, Article 25(2) does not prevent the State from making a law to regulate or restrict the fundamental right.

The AG submitted that the series of rights under Article 19 can be regulated only by a "law to be made by the State". However, that is not a requirement under Article 25, and this right is subject to "public order, morality and health".

If somebody is to assert the exercise the right to freedom of religion. The court will have to see if this exercise affects public order, morality. Whenever challenge comes before court, first test according to me, whether it comes against public order, morality or health. AG said he will elaborate more on the aspect of essential religious practice on Monday.

GO in consonance with Education Act: State

It may be noted that the petitioners have argued that the Education Act is a complete code in itself, and the so-called College Development Committee does not find mention under the statute. Hence, the State could not have delegated upon it the power to prescribe unfirms.

Responding to this, the AG today argued that GO dated February 5 empowering College Development Committees (CDCs) to prescribe uniform is in consonance with the Education Act. In this regard, he cited a Circular issued by the government in 2014, constituting the CDC.

"CDCs are there since 2014. None of the colleges have come before the Court questioning the CDCs. Students have come before the court and say that the authority is extra-statute. The challenge must fail on that ground itself."

He then submitted that constitution of CDC was done under Section 133(2) of the Act which gives residuary powers to the State. "Kindly look at the constitution of CDC, there cannot be a more representative character...There is a local MLA, parents representative, students representatives and others. The entire fulcrum comes together. Therefore there cannot be such a criticism to such a committee," the AG insisted.

The Bench however noted that the 2014 Circular, constituting the CDC, was been issued by an under-secretary. "Can that be treated as an order under Section 133? This is not a govt order, it is not a notification. It is a circular by under-secretary," the Chief Justice asked.

The AG responded that such circulars are issued by the approval of the Government.

"Was the govt approval there?" the Chief Justice further inquired.

"Certainly, yes. I can place the records. Where a MLA is appointed to the committee, it would not have been without approval of the government," the AG said adding that he will produce the relevant files on record. The Chief Justice said that a clarification is needed on this aspect to appreciate the arguments of the AG.

The AG further said that there is a provision under the Act that if students find any problems they can give representation to PTA or State. "A normal student would have been expected to give a representation...They have come here directly," AG said.

Whether the presence of MLAs on CDC gives it political character to institutions?

Justice Dixit asked the Advocate General as to the need for appointing MLAs to the CDC, purportedly meant to oversee academic welfare of students. "...can those political views enter the campus? It is not that we have no respect for MLAs. But point is, MLA is a more political character. Whether that character should have overtone in the administration of an education institution? It is not about this party or that party."

"The desirability of MLAs in committee is a matter of debate...My submission is that GO is exercised under section 133 (2), therefore challenge has to fail," the AG responded.

Impugned GO innocuous in nature: State

The AG stated that contrary to what the petitioners argued, the prescription of uniform has been made for some time. In this regard, he referred to the resolution of the CDC of Govt PU College, Udupi, prescribing college uniforms in the years 2013 and 2018.

The AG claimed that there was no difficulty till December 2021, when a group of students, possibly petitioners, approached the Principal & insisted that they will enter the college (all-girls) wearing hijab. When this insistence took place, the CDC examined the matter on January 1 and resolved,

"Since 1985, uniforms have been worn by the students. It was decided in the meeting to conduct classed as per the previous system until further orders by Director of PU Department."

The AG submitted that the parents of the students were called to the meeting and they were informed that uniform system is there since 1985. However, the students continued to protest, leading to the constitution of a high level committee by the State to examine the matter. Meanwhile, it was ordered that status quo ante be followed.

Subsequently, the present writ petition came to be filed, even before the GO dated February 5, ordering that students should wear uniform prescribed by colleges, was issued.

The AG stated that the impugned GO was issued after there was an unrest, due to the issue spreading to other institutions.

"This GO is innocuous in nature. It does not affect any of the petitioners' rights...State is not interfering. We are saying uniforms as prescribed by the CDC must be worn," he said.

It was further argued that there is no issue of hijab in the Govt Order. Referring to the last portion of the order which refers to clothes being in consonance with unity & equality, the AG said, "Here the draftsman went a bit enthusiastic. What was meant was, in case no uniform is prescribed, please wear decent clothes. I agree it could have been worded better."

What was the need for making reference to hijab in the issued impugned GO? Court Asks

Today, the Bench inquired from the State government as to what was the necessity to issue the impugned GO. It may be recalled that before the operative part of the GO, it contained a paragraph that observed that banning of hijab will not violate Article 25, after referring to a few High Court and Supreme Court judgments.

"You say the GO is innocuous. But you say banning hijab will not violate Article 25. What was the necessity of saying all that?" the Chief Justice asked.

The AG responded that the State has very consciously kept away from it and has given the autonomy to CDC. "Conscious stand of the state is that we do not want to intervene in religious matter. We could have said hijab was against secularism and order and could have said it is not permissible. We have not. It is a stated stand of the state we did not want to intervene."

The Bench then asked whether the State will have no objection if the CDC, which is allegedly empowered in this regard, allows wearing hijab.

"If a CDC permits wearing of hijab, under Section 131 Education Act we have revisional powers, and if there is objection, State can decide. As of now, in the order we have given autonomy to the CDC," the AG responded.

The Bench also pointed out that though the GO does not clearly say Hijab is prohibited, the order could be understood as such by common people. "You have not articulated properly that wearing of hijab is not prohibited. But these orders are for meant for common people, teachers, students members of CDC, how will they interpret it?, Justice Dixit asked.

The Bench then inquired the necessity of mentioning three judgments (pertaining to the right to wear hijab) in the GO.

"On a better advise, these could have been avoided. But that stage has passed," the AG responded. However, he added that the GO has to be understood for what it ultimately directs, and it is wrong on the part of the petitioners to say it is communal.

Alleged misuse of Interim Order

A petition filed by the students of a private college through Advocate Sirajuddin Ahmed alleged that in the garb of the interim order, restraining the students from wearing any sort of religious clothes in classrooms, some anti-social elements preventing the Muslim girls from wearing hijab. It was further alleged that every institution where hijab used to be allowed, are now stopping the girls.

The Bench however noticed that persons against whom allegations are levelled were not made a party to the case.

"Where is the averment that the college is preventing. He says anti-social elements are preventing...Not even one anti-social element is made a party. College is not made a party. No explanation is given for not making a party. How can this petition be entertained?" Justice Dixit remarked.

The Bench allowed withdrawal of the writ petition with liberty to file afresh.

Further, the Chief Justice clarified that the aggrieved persons may lodge FIR against the anti-social elements.

Earlier, the Court had rejected an affidavit filed by an Advocate, which alleged that the was being misused by authorities to stop hijab-wearing students even in institutions with no prescribed uniform.

When the hearings got over today, Advocate Mohammad Tahir mentioned that the order was being widely misused to harass students and even teachers and request the bench to call for a report from the State. He submitted that policemen are deployed at school gates, who are harassing Muslim girls, although the interim order prevents the wearing of religious dress only in classrooms.

The AG submitted that the complaint could be given to him in writing and undertook to instruct all authorities to not act beyond the order.

Live-Streaming of Hijab case

It is significant to note that the Full-Bench hearing of this case is being live-streamed by the High Court on YouTube.

Stating that the same is causing confusion in public as the observations are understood out of context, Senior Advocate Ravivarma Kumar appearing for the petitioners urged the court to cease the same.

"Live streaming is causing a lot of unrest as observations are understood out of context. Live streaming has become counterproductive and children are put to untoward unrest," he said.