The Karnataka government’s order that has been cited to ban hijabs in educational institutions is illegal, the lawyer for a group of petitioners told the High Court on Monday, Bar and Bench reported. The lawyer also added that wearing headscarves was a constitutional right covered under Article 25.
Devdatt Kamat, the lawyer for some of the petitioners, made the statement before a three-judge bench of the High Court.
The Karnataka government passed an order on February 5 banning clothes that “disturb equality, integrity and public order”. The petitioners before the High Court have claimed that this order violates the constitutional rights to equality, life and protection from discrimination.
Kamat argued that public order is the only reason for which a government can restrict freedom of religion under Article 25. He added that college development committees do not have the right to disallow hijabs as they have no statutory authority.
“Public order is the State’s responsibility,” he told the court. “Can a college development committee decide if the exercise of this right is permissible?”
The lawyer cited a Supreme Court judgement from 1954 to argue that essential practices of a religion could be extended to food and dress, according to Bar and Bench. He added that students in the present case had been wearing hijabs since they were admitted to the colleges.
Kamat said that the state government’s stand that the wearing of a headscarf was not covered under freedom of religion was “totally erroneous”.
“State is an outside authority, it cannot say that wearing a headscarf is essential practice [of a religion] or not,” Kamat submitted to the court, according to Live Law. “It has to be seen from the view point of a believer.”
In response, Chief Justice Ritu Raj Awasthi asked whether Article 25 of the Constitution, which guarantees freedom to practice and profess a religion, was an absolute right, or whether it was subject to some restrictions. Justice Krishna S Dixit also asked Kamat if protection granted to an essential religious practice was absolute or whether it could be regulated by law.
To this, Kamat said that Article 25 (1) gives the State the power to regulate religious practices if they offend public order, morality and health.
On February 10, the High Court had restrained students of all faiths from wearing religious clothing in the classroom until further orders.
The court had stated that while all citizens have the right to profess and practice any faith, it is subject to reasonable restrictions under the Constitution. The order added that the matter as to whether wearing a hijab in a classroom is an essential religious practice of Islam needs a deeper examination.
On Monday morning, high schools reopened in Karnataka after having been shut for six days as large-scale demonstrations erupted in the state with respect to the ban.
Translation of government order to ban to hijabs not accurate, says court
In his submissions, Kamat argued that the state government cannot claim that wearing hijabs would incite passions, Live Law reported.
“If your lordship sees the GO [government order], they say ‘public order’...One of the grounds which they take is public order,” Kamat told the court.
Responding to this, Karnataka’s advocate general said that the translation of the government order, originally issued in Kannada, has not been done properly in the petition.
Justice Dixit read the original order in Kannada and agreed that the words “unity, equality and public order” have not been translated accurately.
“Government order cannot be interpreted like a statute...We have to use common sense,” Dixit said. “Words do not have static meaning. We have to see the company the words keep.”
After this, the court adjourned the matter till 2.30 pm on Tuesday as Kamat said that he would need more time to conclude his arguments.
Protests against hijabs
Last week, Hindu students and mobs of men protested against Muslim women wearing hijabs to educational institutes at several places in Karnataka. Many of them wore saffron scarves as a mark of protest.
At some colleges, Muslim students were heckled, while in another case some men climbed up a flagpole to plant a saffron flag and broke into classrooms.
Ahead of reopening of schools till Class 10, the district administration in Udupi imposed prohibitory orders under Section 144 of the Code of Criminal Code Procedure in areas around all high schools. Under the section, assembly of five or more members around the school perimeter is not allowed.
Earlier, the Karnataka government also issued a series of directions to district administrations to maintain peace.
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