The observations come on a day when Karnataka is witnessing violent protests by saffron-clad students against the hijab and against their classmates wearing the hijab.

Chikmagalur: Students wearing saffron shawls stage a protest against allowance of hijab-wearing students to enter classroomsPTI
news Court Tuesday, February 08, 2022 - 17:05

The Karnataka High Court on Tuesday, February 8, requested the student community and the public at large in the state to “maintain peace and tranquillity, so that the public should not be disturbed.” The court said it has full faith in the “wisdom and virtue of the public at large and hopes that the same would be put to practice.” The Karnataka High Court bench of Justice Krishna Dixit was hearing a batch of pleas by students who were barred from attending classes because they were wearing hijabs. The court will continue hearing the matter at 2.30 pm on Wednesday, February 9. The observations come on a day when Karnataka is witnessing violent protests by saffron-clad students against the hijab and against their classmates wearing the hijab. 

Asking people not to engage in violence, Justice Krishna Bhat observed, “People should have faith in the Constitution. Only a mischievous section of people will keep the issue burning. But holding agitation, going out on the streets, shouting slogans, attacking students, students attacking others… these are not good things.”

Also read: Protests over hijab turn violent in Karnataka: Stones pelted, saffron flag hoisted in college

The Advocate General, appearing for the state government, had urged the High Court to pass an order barring demonstrations or protests over the issue, saying that there have been instances of a law and order issue in many places in the state. The petitioner’s counsel also agreed with the AG. 

The petitioner’s counsel submitted to the court that barring students wearing hijabs from attending classes is violative of the students’ fundamental rights as enshrined under Article 19 and 21 of the Constitution. “It is a complete affront to their fundamental rights,” the petitioner’s counsel, senior advocate Devadatt Kamat said, adding that students are due to appear for examinations, and asked the court to ‘balance rights’ and allow students to attend classes. 

The Karnataka High Court will continue hearing the matter at 2.30 pm on Wednesday, February 9, and the Advocate General is expected to make arguments on behalf of the state government. 

Hijab an essential religious practice: Petitioner’s counsel

In his opening remarks, Justice Krishna Dixit said he will abide by the Constitution and ‘not by emotions’, adding that ‘the Constitution is like the Bhagavad Gita’ for him. He said he is not happy to see students out on the road over this. The international community is also seeing this, the judge added. 

The petitioner’s counsel, senior advocate Devadatt Kamat, submitted to the court that wearing a headscarf or hijab (not burkha or veil) is an essential religious practice as prescribed by the Quran. Secondly, the right to wear a dress is a facet of Article 19 (1)(A) (freedom of speech and expression) and restriction can be levied only under 19 (6) of the Constitution, as held by the Supreme Court in 2014. This also violates Article 21 of the Constitution, citing the Puttaswamy judgment that the right to wear an attire of their choice falls under the right to privacy. Senior advocate Devadatt Kamat opposed the recent Karnataka government order which mandated status quo in the college and that school uniform be followed. The counsel added that the government does not have the jurisdiction to issue orders on school uniforms as per the Karnataka Education Act, 1963. 

“To give it the colour of public order is an attempt to put the cart before the horse. If it is a public order issue, how is it that public order is affected only when students enter school wearing hijab and not outside? The state is using the bogey of public order to restrict fundamental rights,” the counsel submitted. “What public order issue is a student who is wearing a hijab and minding her own business, creating? And if goons are creating a law and order issue, the state can utilise its police power to ensure that essential religious practises can be professed by people as allowed in the Constitution,” counsel Kamat submitted. India practises positive secularism, not negative secularism, he added. 

“How can students be segregated? This is a form of religious apartheid being practiced by the school,” the petitioner’s counsel Devadatt Kamat said, drawing interjection from the Advocate General, who said that this statement may fan sentiments and that ‘baseless allegations’ should not be made. One of the schools witnessing tensions over the hijab has allowed students wearing hijab to enter the school, but has segregated them into a different classroom from other students. 

Also read: Students wearing hijab at Udupi govt college made to sit in separate room

The High Court was hearing a batch of pleas against the hijab ban on colleges and schools. The first petition was filed by one of the five students who were first barred from entering the Women’s Government Pre-University College in Udupi in December 2021, as they insisted on wearing the hijab. The petition contends that the right to wear the religious headscarf is enshrined in Articles 14 and 25 of the Constitution, namely equality under the law and the right to freedom of religion. “The Constitution of India guarantees the Freedom of Conscience and the right to profess, practise and propagate religion while reserving the state's right to interfere with the religious matter only if it involves an issue relating to public order, morality and health,” the petition said. 

The petition also said that the exclusionary practice of singling out the petitioner solely on the basis of wearing the hijab, is against constitutional morality as it lacks any public interest. The petitioner sought interim relief from the court, allowing her and the other students who wish to wear the hijab to attend classes. 

Read: 'It's as if our dreams don't matter': Students barred for wearing hijab speak

The incident in Udupi triggered a series of protests in tens of educational institutes across Karnataka. The row has turned into a political flashpoint and gained international coverage as well, which prompted the government to mandate a dress code, according to which students are banned from wearing clothes which “disturb equality, integrity and public order.” Chief Minister Basavaraj Bommai, who is in Delhi, on Monday said that the Karnataka government is awaiting the High Court’s order on Tuesday before taking a decision in the matter. 

Read: Karnataka hijab row: Govt asks students to follow uniform, not to disturb peace

In the past few weeks, sections of students across colleges in the state have been protesting against allowing the hijab inside the classroom by wearing saffron shawls. This has prompted ministers of the state government to urge students to focus on their education and to maintain unity. 

Since then, the issue has spread across the district and in other parts of the state, with instances of hijab-wearing students being barred from classes reported in Chikkamagaluru, Mangaluru, Shivamogga, Haveri and other districts. The saffron-clad protesters are shouting slogans at their classmates who wear the hijab, raising saffron flags in schools, and in some instances, heckling their Muslim classmates

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