Wearing Hijab Essential, Ground Of Public Order Won't Pass Constitutional Muster: Counsel Of Veil-Wearing Students In Karnataka HC

The entire country had its ears glued to the controversial Hijab row case that was being heard in the Karnataka High Court today (8 February). While the court ended the hearing for the day and said it would resume tomorrow at 2.30pm, the state government announced a three day holiday for all high schools and colleges to avoid untoward incidents given reports of violence in various institutions across the state.

The arguments put forth by the lawyer Devadatt Kamat representing the petitioner seeking right to wear Hijab to class, many of which were called “dangerous“ by the Advocate General, are as follows:

His final submissions as he submitted were that:

1. Wearing Hijab is essential practice of Islam;

2. Ground of public order will not pass constitutional muster;

3. There is positive duty on state to maintain public order; it failed, and then it cannot tell citizens don't exercise Article 25 rights.

While making this, he sought that the petitioners be granted interim relief ‘considering that exams are approaching and in view of the fact that petitioners have been exercising their rights since last two years.

The arguments that began around noon today started with the Advocate General telling the court that the state had not intervened in the matter and that the College Development Committees had been given autonomy to decide the uniform that the students will have to be abided by. Beginning his argument in response to this, Kamat argued that the state’s stand ‘is not that innocuous’, which is why it is opposing the petition.

As reported by Bar & Bench, Kamat then went on to argue that wearing of headscarf is an essential part of Islamic religion and that all decisions cited by various courts until now don’t deal with this issue.

His second argument was that the wearing of Hijab is protected by right to expression under Article 19(1)(a) and can be restricted only on grounds under Article 19(6).

His third argument was that ‘wearing hijab is a facet of right to privacy recognised as part of Article 21 by Puttaswamy judgement of Supreme Court’.

Fourth argument that he made was that the government order is ‘outside the scope of Karnataka Education Rules‘ and that the state has no jurisdiction to issue the same. He also argued that dictating what an essential practice of religion is and what is not is the sole domain of constitutional court and not the state.

He read out verses from the Quran on dress code which dictate that the neckline should not be revealed to anyone other than the husband. Reading from a judgement that dealt with the extent to which constitutional protection is available to religious practices, Kamat stated that a religious practice cannot be tested on secular thought outside of religious authority. “Our secular thought cannot determine what is essential to a religion and what is not“, Kamat added.

He said the Kerala High Court judgement that the Karnataka GO relies on is not applicable because the particular decision didnt talk of wearing the Hijab in a government institution but about doing so in a private Christian institution. He also observed that the Bombay High Court decision too wasn’t applicable since there the court was dealing with a case relating to all girls school. He went on to cite authorities emphasising that the headscarf is part and parcel of Islamic faith.

Coming to his second key argument, Kamat argued asking the court if it was indeed an issue of public order “how is it that public order is affected only when they enter school wearing Hijab and not outside”.

He then claimed that the practitioners ’are wearing Hijab and not creating any disturbance to anyone’. He questioned if the school his son (he being a Brahmin) went to could stop him from wearing the ‘namam’ to school, citing ‘public order’.

“Merely saying law and order will be disturbed is not sufficient. We have been quietly practicing our faith, wearing a headscarf and coming to college. To give it the colour of public order, this is an attempt to put the cart before the horse,” said Kamat, as reported.

He added that the state cannot ‘curtail fundamental rights’ of citizens on the ‘facile ground’ of public order.

“In this case (in contrast to the Ananda Margis case), a girl going to college, wearing hijab minding her own business, what law and order issue does she cause?” Kamat asked the court.

Preempting the argument that education be kept separate from religion, Kamat asserted that Indian secularism was different from western secularism, where the state stays completely away from religious activities. Calling it positive secularism, Kamat put the ‘namam’ and the ‘cross’ in the same realm as the headscarf saying all three are permitted here.

He then went on to accuse the college that asked Hijab students to sit in a classroom of indulging in ‘one kind of religious apartheid’.

To his argument that ‘what dress to wear is part of right to privacy’, the Bench asked Kamat if the fellow judges can turn upto court without wearing the judge's attire. Kamat responded saying, “There can be a law. BCI can tomorrow lay down a law which is in consonance with the Constitution. I am conceding that.”

He went on to say there was a video of a girl in Hijab being ’chased by boys’, which is why the students should be given protection. The AG objected to the statement calling it dangerous and said that the state was in control and asked for such unsubstantiated statements to not be made.

Kamat responded saying the petitioners will not hold any protests on streets but that the state cant suspend Article 19 on the grounds of law and order being affected and warned that it could have ’serious constitutional repercussions’.

While the court ended the hearing for the day, Justice Krishna Dixit remarked saying, “When I was studying these kind of things did not happen,” and requested that the student community and the public at large maintain peace and tranquillity.