Hijab not an essential part of Islam, Karnataka government tells High Court
The advocate general also argued that a ban on hijab does not violate the freedom to practice and profess a religion under Article 25 of the Constitution.
The Karnataka government on Friday told the High Court that hijab was not an essential religious practice of Islam, reported Live Law. Advocate General Prabhuling Navadgi also contended imposing a ban on hijab does not violate the freedom to practice and profess a religion under Article 25 of the Constitution.
The High Court is hearing pleas filed by the students of the Government Women’s Pre-University College seeking permission to wear hijab to educational institutions. They have been protesting since last month after they were not allowed to attend classes for being dressed in hijab. Similar protests have also taken place across the state.
On February 5, the Karnataka government had passed an order banning clothes that “disturb equality, integrity and public order”. On February 10, a three-judge bench had barred the students in Karnataka from wearing “religious clothes” in schools and colleges until further orders.
At Friday’s hearing, Chief Justice Ritu Raj Awasthi told the advocate general that Senior Advocate Yusuf Muchhala had argued that even if wearing hijab was not an essential religious practice, a ban on the headscarves would violate Article 25, as the provision was not only about freedom of religion, but also about freedom of conscience.
Citing jurist Durga Das Basu, Navadgi said that conscience and practice of religion are two different things, reported Bar and Bench.
“Freedom of conscience refers to the mental concept,” he said. “Freedom of religion refers to the external manifestation through observances and rituals.”
Navadgi claimed that wearing hijab was a religious act, but wearing rudraksh (stonefruits worn as prayer beads) was external manifestation of his religion.
The advocate general also argued that while the rights under Article 19 can be regulated by law made by the state, Article 25 does not have have such a clause. However, he said, Article 25 was 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,” the advocate general submitted. “Whenever [such] challenge comes before court, first test according to me, whether it comes against public order, morality or health.”
He said that it was baseless to argue that the government order to ban clothes that “disturb equality, integrity and public order” was irrational and discriminates against Muslim women. The advocate general said that a plain reading of the order shows that it does not affect anyone’s rights.
“Justice Dixit had made an observation that orders must be read as they are, as a plain reading and not as a statute,” he submitted. “I cannot put it in a better manner than what your lordships have said.”
Navadgi added that the government has left it to the autonomy of College Development Committees to decide on what students should wear.
Meanwhile, Advocate Mohammad Tahir, appearing for some of the petitioners, said that the High Court’s February 10 order was being interpreted differently by educational institutions.
Tahir submitted that wearing hijab has now been banned in Urdu schools and colleges. He claimed that police officers were threatening girls wearing hijab.
“The [interim] order said classroom,” he said. “But at gates, students are stopped.”
Navadgi then said he would file an application and assured the court no one will be allowed to act beyond the court’s order.
Tahir, however, sought a report on the matter from the state and said that the ministers were justifying the ban saying it was the court’s order.
But the court turned down the request.
“He [Navadgi] is very fair to court, he will act,” Awasthi said, asking Tahir to file an application.
The advocate general will resume his arguments on February 21.
Following the court’s order, several schools in Karnataka have stopped students from attending classes wearing hijab.
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Earlier this month, Hindu students and mobs of men have also protested against Muslim women wearing hijabs to educational institutes at several places in Karnataka. At some colleges, Muslim students have been heckled, while in another case some men climbed up a flagpole to plant a saffron flag and broke into classrooms.
As tensions escalated, the Karnataka government shut all schools and colleges between February 9 and February 12. The schools till Class 10 were reopened on Monday, while colleges reopened earlier on Wednesday.
On Thursday, the Karnataka Police imposed Section 144 of the Code of Criminal Procedure within a 200-metre radius of all educational institutions in Hubballi-Dharwad city till February 28. Similar restrictions were placed in the districts of Udupi, Dakshina Kannada and Bengaluru.
Under the section, assembly of five or more people around the school perimeter is not allowed.