Karnataka High Court on Monday, February 14, continued hearing arguments in the petitions against the hijab ban in high schools and colleges. Senior advocate Devadatt Kamat, appearing for a student petitioner, submitted to the court that the Karnataka government’s order (GO) mandating a dress code on campus and excluding the hijab is ‘illegal and erroneous.’ Kamat contested the state government’s order, saying that the GO holds that wearing hijab is not protected by Article 25 (right to religion), which is illegal.
“The declaration of the GO that wearing headscarves is not part of Article 25 is illegal. The person who has drafted GO has not bothered to look at Article 25,” Kamat said. “The State is an outside authority, it cannot say whether wearing a headscarf is an essential practice of a religion or not,” he said, adding that it does not matter “whether I or anyone else feels it is regressive. The believer’s viewpoint matters.”
The petitioner’s counsel submitted that the students have been wearing a headscarf the same colour as their uniform, since their admission to the college, for the past two years, and were stopped from doing so after the GO. He added that they are not asking for a different uniform, they have sought to cover their head with a scarf the same colour as the uniform. Kamat also argued that even Kendriya Vidyalayas have issued a notification that though they have a uniform, Muslim students are permitted to wear a headscarf the same colour as the uniform.
Kamat also contested the state government allowing college development committees to decide on the dress code and uniform. He added that only ‘public order’ can be a reason to restrict the fundamental right of a person, and that a college development committee has no statutory power to ban hijabs.
“Public order is the state’s responsibility. Can a college development committee, consisting of an MLA and subordinates, decide if this exercise of a fundamental right under Article 25 is permissible? The committee is a third party — an extra-statutory body is being made in-charge of fundamental rights. This is totally impermissible,” Kamat added.
“The State has a positive duty to ensure people can exercise their fundamental rights. If there are certain sections of the society who don't want other fundamental rights of other sections to play out, this is no ground to restrict the fundamental rights of that section,” Kamat submitted.
He also questioned the GO which cited three judgments to bar hijabs where there is a dress code, saying that one of the judgments talk about minority institutions, one talks about a girls-only school, and one talks about teachers’ dress code, but they have been applied to ban hijabs from government institutions in Karnataka.
The court will continue hearing the case at 2.30 pm on Tuesday, February 15.
Last week, the Karnataka High Court bench had issued an interim order, restraining students from wearing any kind of religious clothing, be it a headscarf or saffron shawls, to high schools and colleges, till the case is being heard in court. However, the HC said that this applies only to those institutions which have a dress code that disallows the hijab. The HC had also allowed high schools and colleges to open. The bench observed that the main objective of the case should be to ensure students can attend schools
Though the petitioners asked for interim relief stating that disallowing the hijab will be in contravention of the students’ fundamental rights, the Chief Justice said it is a matter of a few days and adjourned the hearing.
After a brief shutdown by the government as anti-hijab protests were turning violent, high schools reopened in Karnataka on Monday, February 14, and many Muslim students who came to attend classes, and even teachers, were asked to remove hijabs at the entrance.
A single bench of the Karnataka High Court had been hearing pleas against the hijab ban, when Justice Krishna Dixit transferred the matter to a larger bench. Justice Dixit said that there are some constitutional questions of seminal importance, as there is an aspect of personal law involved in the issue, and hence a larger bench may be constituted to hear the case. The matter was then referred to the three-judge bench.
The hijab row started at the end of December last year when a few students wearing the hijab were barred from a government pre-university college in Udupi. The hijab-wearing students protested against this, and to counter this some Hindu students in colleges in Kundapur started coming to their institutions wearing saffron scarves. The saffron protests spread to other parts of the state. The Karnataka government then banned both hijabs and saffron scarves, and said that till an expert committee decides on the issue, all students must adhere to the uniform.