The Karnataka government on Friday, February 18, submitted to the Karnataka High Court that wearing a hijab is not an essential religious practise under Islam and that not allowing it on campuses of educationalal institutions does not violate Article 25 of the Constitution, which guarantees freedom to practice religion. Advocate General (AG) Prabhuling Navadgi began his submissions for the state government before the three-judge bench of Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi, which is hearing a batch of pleas against the hijab ban on campuses.
The Advocate General said he will be presenting arguments on three grounds — one, that hijab is not an essential religious practice, the right to wear a hijab cannot be counted under freedom of expression, and that the state government’s February 5 order mandating uniforms in colleges falls in line with the Karnataka Education Act.
The Advocate General also contested the submission by the Muslim student petitioners that the state government’s February 5 order mandating a dress code violates Article 25 of the Constitution. Article 25 of the Constitution ensures freedom of conscience and free profession, practice and propagation of religion to the citizens of India. Citing the Supreme Court judgments in the Sabarimala case and the triple talaq case, the AG told the High Court bench that the practice of wearing a hijab “must pass the test of Constitutional morality and individual dignity.” He also added that Article 25 (2) allows the state to make laws to restrict fundamental rights ‘in the interest of public order, morality and health.’
The AG told the High Court that the state government has not interfered in the issue and has allowed College Development Committee (CDC) at the Udupi PU College to decide on the uniform. “The state’s conscious stand is that we do not want to intervene in religious matters. We could have said that hijab was against secularism, but we have not done that…”
The AG then cited a resolution of the College Development Committee of the Udupi college which spoke about the uniform. “The prescription of uniform was done in 2013-14. The change in uniform was in 2018. Since then, there has been a uniform. There was no issue till Dec 31, 2021, when the girl students said they will enter the institution only with hijab,” the AG said.
The AG submitted that when the government was informed of this issue, it decided to constitute a high-level committee to decide on it, and till then, had asked the college to maintain the status quo. “But protest continued, unrest spread to other colleges,” the AG said. In this context the government gave the order on February 5, 2022 mandating uniforms.
The AG, however, told the High Court that the person who drafted the government order was “over-enthusiastic” and that the order should have been worded better. The Karnataka Government Order stated, “In case the institution does not have a dress code or uniform, students must wear clothes that promote equality, unity and do not disrupt public order.” The AG told the court that all the state government wanted to say that if there is no dress code, students should dress decently. “The question of proscribing or prescribing the hijab does not arise. The state government has given complete autonomy to the CDC and to private management for private colleges to decide,” the AG added.
The state government had said that in state government schools, students shall compulsorily wear uniform prescribed by the government. In private schools, students shall wear a uniform that is prescribed by management. In PU Colleges, the uniform prescribed by the CDC shall be worn.
“We are not interfering. We are just saying whatever CDC decides. If CDC is not fixing, then students should wear dress code for equality. We (state) have consciously stayed away from this,” the AG said. To this, the High Court asked, “So if CDC says hijab is allowed, you will not interfere?” The AG replied that in that case, if someone approaches them with any grievance or complaint that uniformity is not being followed, the government has revisional powers under the Karnataka Education Act, and the government can take a decision.
The Advocate General also submitted that conscience and religion are two different things. “Freedom of conscience is a mental concept. Right to religion is an external manifestation — through observance, rituals etc. Wearing a hijab comes under the right to practice religion,” the AG said. The High Court then asked, “So is hijab a part of essential religious practice?” The AG responded, “The answer is no,” and sought time to elaborate on this on Monday, February 21, when the hearing in the case is set to continue.
During the hearing, the petitioners’ counsel Mohammed Tahir told the High Court bench that its interim order has been interpreted in different ways and that even Muslim teachers are being told to remove their hijab on campus. “Policemen are deployed at gates and are threatening Muslim girls. The order mentioned classrooms, but students are being stopped at the gates,” he said.
The AG said that a written complaint could be submitted with specific details and that the state will ensure the interim order is followed.
The High Court will continue to hear the Advocate General’s submissions on Monday at 2.30 pm.
Here’s what has happened in the previous hearings: