Hijab ban: State can't dictate what is essential religious practice, argues counsel before Karnataka HC

THE Karnataka High Court, on Monday, continued to hear the arguments on a batch of petitions challenging the ban on wearing the hijab by Muslim girls in educational institutions. The challenge is also to a Government Order [GO] issued by the Karnataka state government on February 5 under the Karnataka Education Act, 1983 directing the College Development Committees [CDCs] all over the state to prescribe ‘student uniform’.
A full judge bench of the High Court, comprising Chief Justice Ritu Raj Awasthi, and Justices Krishna Dixit and Khazi Jaibunnisa Mohiuddin, had on February 10 already passed an interim order restraining all the students regardless of their religion or faith from wearing saffron shawls (Bhagwa) and connected matters scarfs, hijab, religious flags or the like within the classroom, until further orders. Following the order, this morning, visuals surfaced in which girl students and teachers could be seen taking off their hijab at the entry gate of the college.
Leading the arguments against the Government’s Order, senior advocate Devdatt Kamat, on behalf of two Muslim girls, submitted that the state government is an outside authority; it cannot declare whether wearing a headscarf is an essential practice of the religion or not. He cited the decision of the Supreme Court in Ratilal Panachand Gandhi vs The State Of Bombay (1954) to this effect. In this case, the Court had observed that [n]o 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 they like under the guise of administering the trust estate”.
Kamat made two-fold submissions. First, the GO is totally erroneous and in breach of Article 25 (freedom of conscience and free profession, practice and propagation of religion) of the Constitution, and the delegation of the power to the CDCs is illegal because ‘public order’- a ground to restrict religious freedom – is a state subject, not for the CDCs to determine. CDCs, Kamat argued, are extra-statutory bodies, who cannot rule whether a particular religious practice can offend public order.
Kamat cited the Kerala High Court’s judgment in Amnah Bint Basheer vs. CBSE (2015), in which, after examining Quranic injunctions and the Hadiths, the High Court had held that it was obligatory to cover the head and wear the long-sleeved dress except for the face part, and exposing the body otherwise is forbidden (haram). Kamat also cited the Madras High Court decision in M. Ajmal Khan vs. The Election Commission Of India (2006), in which, it was held that “there is almost unanimity amongst Muslim scholars that purdah is not essential but covering of head by scarf is obligatory”.
Kamat relied upon the decision of the Supreme Court in Bijoe Emmanuel & Ors vs State Of Kerala & Ors. (1986), in which it was held that the personal views of the secular judges are irrelevant if the belief is genuinely and conscientiously held as part of the profession or practice of religion. He relied upon the decision of the Supreme Court in The Commissioner of Hindu Religious Endowments, Madras vs. Sri. Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954), in which it was said, “A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress”.
Kamat took the judges through the GO and the decision cited therein by the state government to justify its decision. He argued that the state government’s reliance upon the Kerala High Court’s decision in Fathima Thasneem vs. State Of Kerala (2018), is a misplaced one because the case dealt with a right of a Muslim student to wear hijab in a minority private institutions. He argued that under Article 30 of the Constitution, minority institutions have been conferred the right to administer the institution as per their choice. He said in his case, the facts are different as the petitioners belong to a government-run school.
He distinguished the Bombay High Court decision which the state cited in the GO. Kamat said this judgment pertained to all-girl schools, and hence it cannot be applied in the facts of the present case.
Kamat argued that the issue of Essential Religious Practice comes into play only when the practice is violent and it infringes the freedom of others. He submitted that wearing of hijab in no way curtails anybody’s freedom. He emphasised that wearing a hijab does not offend public order and that the petitioners have been wearing it since their admission to the college. He added that even at the national level, the hijab is allowed. He cited a circular by Navodaya Vidyalayas permitting the wearing of hijab by Muslim girls.
Kamat beseeched the Court to safeguard the religious freedom of the petitioners. He argued that that state is under obligation to create a conducive environment for the exercise of the freedom of religion. He took exception to the government’s line of argument of law and order situation qua allowing hijab in the colleges. He said maintaining law and order is the state’s subject and for that, it can’t curtail the freedom of religion.
Attacking the delegation of power to CDCs, Kamat said the state abdicated its statutory responsibility. He argued that CDCs, which also comprises MLAs, could not take over the function of the Executive. He submitted that if the state thinks wearing a hijab is against public order, then it is for the Executive to say so, not for the CDCs to decide as it is an extra-statutory body.
Kamat’s arguments remained inconclusive for the day. The High Court would continue to hear the matter on Tuesday.
Before the bench rose for the day, it was presented with an application seeking to restrain media and social media from commenting on the ongoing Hijab debate in view of the ongoing polls in five states. The bench said it was not concerned with the elections but added it could consider such a request if the ECI approached the Court. Chief Justice Ritu Raj suggested that the Court might stop live streaming of the Court proceedings but cannot gag the media. He, however, told the media to be more responsible in reporting the proceedings.

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