THE Karnataka High Court on Tuesday continued hearing the petitions challenging the prohibition on wearing of hijab imposed by government schools and colleges in Karnataka. The matter was heard by a bench consisting of Chief Justice Ritu Raj Awasthi, Justice Krishna S. Dixit, and Justice J. M. Khazi.
At the start of the hearing, a lawyer submitted that he had filed an affidavit to put on record how the state was misinterpreting the court’s interim order banning all students from wearing religious symbols in schools and colleges. He requested the court to reconsider and clarify its order. However, the court stated that it could not do so until a proper application for clarification was filed by the counsel in accordance with the rules of the High Court.
Appearing for one of the petitioners, Senior Advocate Devadutt Kamat submitted that he would like to answer a few questions put to him by the Bench the previous day.
Kamat submitted that the Kannada word used in the impugned government order was to be translated as “public order.” He submitted that while the advocate general had stated that the word could have multiple meanings, the court was to rely on the translation as given in the official translated copy of the Constitution of India, which is translated and published in Kannada by the state government.
To this, Justice Dixit opined that a word in a government order may not have the same meaning as that used in the Constitution of India. To which, Kamat replied that it was his submission that the Kannada translation of the Constitution used the said word numerous times only where the term “public order” was used and accordingly no other meaning can be given to the said word.
Addressing the question raised by the Chief Justice the previous day before about the scope and application of Article 25 of the Constitution, Kamat submitted that Article 25 allows banning a religious practice only on the ground of public order, and for this, the practice has to be abhorrent. In this regard, he relied on the judgment of the Supreme Court in the case of Sardar Syedna Taher Saifuddin Saheb vs. The State of Bombay (1962), in which the Supreme Court had upheld the power of the head of the Bohra community to excommunicate people for disobeying the practices of the religion.
He further submitted that Article 25 protected the sincere practice of religion and only prohibited jingoism. He argued that wearing of a headscarf was a sincere practice and did not amount to jingoism.
On a previous occasion, Justice Dixit had asked Kamat if the Supreme Court of any other country had dealt with similar questions. In response, Kamat relied upon judgments of the Constitutional Court of South Africa in the Pillay case [(2007) ZACC 21], the judgment of the Supreme Court of Canada in Multani vs. Commission scolaire Marguerite-Bourgeoys (2006 SCC 6) which recognized the right of Sikhs to carry a kripan (that is, dagger), and a judgment of the UK House of Lords in R (SB) vs. Governors of Denbigh High School [2006 UK HL 15] in which the court declared that wearing a headscarf is permissible as long as the entire uniform is not altered.
Kamat also relied upon the Indian Supreme Court’s judgments in Gulam Abbas vs. State of UP (1981) and Indibily Creative Pvt. Ltd. vs. Government of West Bengal (2019) to buttress the argument that the Heckler’s Veto doctrine applies in India. Heckler’s veto is a situation in which a party who disagrees with a speaker’s message is able to unilaterally trigger events that result in the speaker being silenced.
Kamat also argued that India’s secularism was different from what is followed in Turkey. He submitted that India followed the principle of positive secularism and not negative secularism.
Kamat reiterated that the Hijab ban was violative of Article 19(1)(a) of the Constitution, as the freedom of speech and expression included the freedom to dress in one’s own way. He buttressed this argument by relying on the Supreme Court’s judgment in NALSA vs. Union of India (2014).
He further argued that the right to wear a hijab flows out of the right to privacy, which has been recognized as an essential facet of Article 21 of the Constitution by the Supreme Court in Justice K.S. Puttaswamy (Retd.) vs. Union of India (2017).
He also reiterated that the Karnataka Education Act did not empower the state or other education authorities to issue notifications regulating uniforms and dress code.
At the end of his arguments, Kamat argued that the Court’s interim order banning all students from wearing any religious attire was in the teeth of Article 25 of the Constitution and ought to be modified.
After Kamat finished his arguments, counsel Prof. Raviverma Kumar started his arguments.
Arguments will now continue on Tuesday at 2:30 p.m.