The Supreme Court had last week issued notice to the State of Karnataka in a batch of appeals challenging a Karnataka High Court verdict that effectively upheld the ban on wearing hijab in government schools and colleges.
The Karnataka High Court had on March 15 upheld a Karnataka government order (GO) effectively empowering college development committees of government colleges in the State to ban the wearing of hijab (headscarves) by Muslim girl students in college campus.
The petitioners – Muslim girl students from various colleges in Karnataka – had approached the High Court after they were denied permission to attend classes on account of wearing hijab.
A three-judge Bench of then Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and JM Khazi held that:
– Hijab is not a part of essential religious practices of Islam;
– Requirement of uniform is a reasonable restriction on the fundamental right to freedom of expression under Article 19(1)(a);
– The government has the power to pass the GO; no case is made out for its invalidation.
One of the pleas before the top court argued that the High Court “failed to note that the right to wear a Hijab comes under the ambit of ‘expression’ and is thus protected under Article 19(1)(a) of the Constitution.”
It also contended that the High Court failed to take note of the fact that the right to wear Hijab comes under the ambit of the right to privacy under Article 21 of the Constitution of India.
With regard to uniform, the plea said that the Karnataka Education Act, 1983, and the Rules made under the same, do not provide for any mandatory uniform to be worn by students.
Senior Advocate Devadatt Kamat, appearing for the petitioners, said that only if an attire disrupts public order, it can be restricted.
“It has to be seen that my attire does not fall foul of public order even if its not a core religious practice. Senior Advocate K Parasaran wears a religious symbol, but does it disrupt public order,” he said.
However, Justice Gupta refused to accept the same.
“You cannot compare lawyers appearing in court as there is a uniform. Other day Dr Dhavan cited pagdi but in Rajasthan people wear Pagdi as a matter of routine. In Gujarat also there is pagdi which is matter of routine, Am i correct Mr Mehta (SG),” the judge said.
Kamat said that the same is applicable for Hijab as well and the test is of public order violation.
“It cannot violate public order,” he said.
“You wearing hijab in public does not offend anyone. But if you wear it in school then what kind of public order are we talking about,” Justice Gupta replied.
Kamat said that maintenance of public order is the responsibility of the State and ‘Hitler’s veto’ is not permissible in a Constitutional scheme.
“Public order here is responsibility of the school. Suppose I wear a head gear on road and there is ruckus, police can come and tell me not to wear it as it disturbs public order. In a constitutional scheme, is Hitler’s veto permissible? There are precedents which states that such a thing is not possible. This is US judgment which was followed in India by a 2001 judgment,” Kamat contended.
He submitted that the State cannot take a ground that public order will be violated.
“It is your (State’s) duty to create an atmosphere where I can exercise my right in accordance with Article 25 of the Indian Constitution,” Kamat underscored.
Kamat also explained why he was making submissions on the aspect of public order.
“The GO uses the term public order. I am not making submissions in the air! If they did not raise it why will I submit it,” he said.
“Do not waste your time on public order Mr Kamat,” Justice Gupta stated.
Kamat said pursuant to the GO, hijab-clad girls have not been allowed entry into colleges.
“So they derive powers from the GO. Is there a written order by schools,” Justice Dhulia queried.
“There are no written orders,” Kamat said.
“This is not a fundamental right violation. It is not the positive right but the negative right that you want to assert,” Justice Gupta said.
“Article 25 rights cannot be contained in a pigeonhole of negative rights. It is the penumbra of rights which makes existence worthwhile,” Kamat replied.
He also contended that the State is entitled to make laws to regulate secular activities.
“Right to Education Act is a social welfare legislation and then they say hijab can be prohibited,” he stated.
The Court asked whether regulation of ‘other secular activity’ is applicable only to Hindus.
“No this court has held it applies to all religion starting from the Hanifi case. State in zeal to put it under 25(2) tried to pick a needle from a haystack,” Kamat stated.
Kamat said that the GO is not clear but muddy.
“High court has stated that the GO is as clear as Gangetic water.. but I would say that its totally muddy. A link such as this must be proximate and rational and direct,” he contended.
In this regard, he highlighted how Karnataka Education Act does not specify any restriction on hijab.
“Please see the preamble of Karnataka Education Act…Any restriction on right must be direct and proximate, not indirect or inferential. The High Court also referred to it. As per the State, preamble is a restriction,” he argued.
“Is there a restriction on wearing headscarf under law. there are none,” he underscored.
He also sought to distinguish hijab from bhagwa and how the latter is mere jingoism and not an innocent display of faith.
“Wearing of an orange shawl is not an innocent display of faith. Wearing orange shawl is an belligerent display of faith and Article 25 does not protect it. Rudraksh, namam, etc are innocent displays of faith,” Kamat contended.
In this regard, he also highlighted the scope of freedom of religion and conscience.
“In Hindu religion we worship deities and somebody carries photo of Lord Krishna or Rama in my pocket. I used to carry a photo.. it gave me security. Is it freedom of religion or conscience. The boundaries where one ends and another begins… such borders are nebulous,” he said.
Regarding the issue of Essential Religious Practice Test (ERP) and whether hijab is essential to Islam, Kamat said that the issue needs to be gone into only if the restriction is deemed to be a valid Constitutional restriction.
“Regarding ERP, there is a divergence of views between Karnataka, Kerala and Madras High Court judgments on whether hijab is an essential religious practice. Madras and Kerala have held it is essential, while Karnataka High Court has not agreed,” he submitted.
He concluded his submissions by seeking reference of the matter to a Constitution Bench.
Advocate Nizamuddin Pasha also appearing for one of the petitioners, then argued on ERP and whether hijab is prescribed in Quran.
He said that the High Court relied on incorrect verses to hold that hijab is not mandatory.
“The verse which shows no one can be compelled to convert has been used to hold Hijab is not mandatory in this case,” he said.
“Tell us which verses say hijab is necessary,” asked Justice Gupta.
“Please see the verse which shows how women should draw veil over bosom and how even for men lowering the gaze is important. The word used in Quran for Hijab is Khimar. In India we call it Hijab. Like in Arabic prayer is called Salah and in India we call it Namaaz. It is one of the pillar of Islam. Khimar is defined in oxford dictionary as a piece of cloth covering head,” Pasha replied.
Pasha pointed out that the High Court relied on a verse which quoted the Prophet as saying “let there be no compulsion in religion”.
“This is a gross is misunderstanding of the verse. It is on conversion. Conversion cannot be forced and no one can be converted to Islam if they don’t want to. That was the idea behind ‘let there be no compulsion’,” Pasha contended.
He then proceeded to quote Surah Al Ahzab.
“Tell thy wives and daughters, and the believing women, that they should cast their outer garments over their persons (when abroad). that is most convenient, that they should be known (as such) and not molested.”
Hijab, Pasha claimed, marks the identity of a Muslim woman.
“Milord hijab marks the difference and protects the identity of a Muslim women,” he stated.
He also contended that the High Court misinterpreted a verse on jilbab (covering entire body with a robe) as referring to hijab.
“The High Court judgment has drawn a conclusion from footnote that verse is recommendary and not mandatory. It concerns Jilbab and not Hijab. Many feel jilbab is not mandatory but bench has considered to be the footnote of hijab,” Pasha said
“So the scholar says God will forgive you if you don’t wear jilbab. But this is not about Hijab,” Justice Dhulia asked.
“Absolutely milord,” replied Pasha.
Due to misreading of the commentary, the High Court comes to the conclusion that Hijab is only recommended and not mandatory in nature, Pasha added.
Pasha also said that certain observations by the High Court borders on blasphemy.
“Commentator speaks about the time when Islam originated there was jahaliyyah and there were incidents of molestations and how hypocrites thrived then. But the High Court says that since this is about that time it has no implication now…..The last verse of Quran meant that religion of Islam was perfected by God for all times to come. High Court saying that verse of Quran is not relevant now anymore borders on blasphemy,” Pasha contended
“Don’t go so far,” Justice Dhulia said.