Allowing hijab under Article 25 will amount to compulsion: Karnataka govt to HC

The Karnataka High Court indicated that it will complete the hearing in the pleas against the hijab ban by this week.
Students in hijab with court in the background
Students in hijab with court in the background

Karnataka Advocate General Prabhuling Navadgi on Tuesday, February 22 told the Karnataka High Court that there is no restriction on wearing hijab in India, but there are reasonable restrictions subject to institutional discipline. The bench of Chief Justice Ritu Raj Awasthi, Justice Krishna Dixit, and Justice JM Khazi resumed hearing pleas against the hijab ban, and the Advocate General (AG) submitted that the denial to wear the headscarf cannot be counted as a violation of Article 15 of the Constitution, which prohibits discrimination of every sort and allowing hijab under Article 25 will make a particular dress compulsory for women. 

“Article 25 is for compulsion, for compulsory practices. The consequence of the demand to declare Hijab as an essential religious practice is huge because there is an element of compulsion or else you will be expelled from the community. But 19(1) is a fundamental right in the civic sense. You give the option of not wearing it (hijab). Women have the option to wear or not," AG Navadgi told the court.

The AG submitted that there is no prohibition in India on wearing the hijab. “Under Article 19(1) if someone wants to wear hijab, there is no prohibition. But there are reasonable restrictions, under 19(2). In the present case, Rule 11 (on dress code) places a reasonable restriction inside the institutions. It is subject to institutional discipline,” the AG said. “There is no restriction on hijabs on campus, it is only not allowed in classrooms,” he added. 

The AG also cited the example of France, as a ‘test’ whether the hijab is an essential religious practice. 'Without the hijab, can Islam survive?' the AG asked. “There is a ban on hijab in France but I don't think anyone can say there is no Islam in France. I am citing France to test whether the hijab is essential,” AG Navadgi said.

The AG also quoted the Supreme Court’s Sabarimala judgment to argue that the hijab does not stand the test of whether it upholds constitutional morality and individual dignity.

“Is hijab acceptable today, in terms of constitutional morality and individual dignity? When it is said I want to wear it, it comes under 19(1)(a). If someone is coming to the court seeking a declaration that we want every woman of a particular faith to wear this, would it not violate the dignity of that person whom we are all subjugating? This will be an imposition and compulsion of attire. According to me, it is impermissible in this day and age,” the AG said. 

“When it comes to individual dignity, this issue of dignity and liberty of human beings, of women, can’t be lying in a vacuum. Women cannot be subjected to a compulsion of dress,” the AG argued. “Individual dignity involves liberty, and liberty involves choice. The submissions by petitioners are based on compulsion. It goes against the fundamental ethos of the Constitution,” he added. 

Senior advocate Venkatramani appeared before the bench on behalf of teacher respondents named in the petition. He said that the school is a qualified public place, so the restriction of public order under Article 25 of the Constitution will apply. He also added that the court should not hold strict scrutiny if the State is taking steps to ensure law and order. 

Appearing for a PU College in Udupi, senior advocate S Naganand told the court that it was an all-girls college and the students had not been wearing hijabs earlier. He contended that the hijab was a cultural practice and not an essential religious practice. “If I am on a scooter, and the azaan starts, should I be permitted to stop in the middle of the road and can I say I should be permitted because of my religion? If a policeman stops me, can I tell him, you are preventing me from practising my religion,” he argued.

At the beginning of the hearing, the High Court bench said it wishes to dispose of the case this week itself and sought cooperation of all the parties involved. A lawyer appearing for the petitioner girls requested the bench for some relaxation to the Muslim girls who wish to appear in the schools and colleges with Hijab. The Chief Justice said, "We want to finish this case this week itself. Make all endeavours to finish this case by the end of this week."

The court has adjourned the hearing to 2.30 pm on Wednesday, February 23.

In the previous hearing, the Karnataka government reiterated its stand that wearing the hijab is not an essential religious practice under Islam.

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