Hijab Not Essential Religious Practice, Reasonable Restrictions Apply: A-G to HC

Meanwhile, a single-judge bench has refused to grant interim relief to students of a degree college.

The Karnataka High Court on Tuesday, 22 February, continued to hear the advocate general's stand on the subject of "essential religious practice," in response to petitions filed in the court by Muslim girl students seeking protection of their right to wear hijab to classes.

Stating that it is for the petitioners to demonstrate beyond doubt "as to what is compulsory to be followed" in Islam, Advocate General Prabhuling Navadgi quoted from the apex court judgment in Mohd Hanif Quareshi and Others vs The State Of Bihar to establish that "the very fact of an option seems to run counter to an obligatory duty."

"What is optional is not compulsory. What is not compulsory is not obligatory. What is not obligatory is not essential," Navadgi added.

Further, he went on to state that the petitioners' argument that the right to wear a hijab is traced independently to Article 19 (1) (a) (right to freedom of speech and expression) was, as per him, mutually destructive to the argument of Article 25 (right to freedom of religion).

"Claiming Article 19(1)(a) as a right is destructive to Article 25. Right under Article 25 is for compulsory practice. When you assert Article 19(1)(a), it means choice."

Advocate General Prabhuling Navadgi

'If Courts Hold Hijab-Use an Essential Religious Practice...': A-G's Contentions

Further, he claimed that "the consequences of a declaration of a court in essential religious practice is that every member of the community is bound to abide."

He also asserted that if the courts held the use of hijab as an essential religious practice, it would impact individual liberty.

On being asked by the court what the state's stand was if the petitioners were only claiming 19(1)(a), the A-G answered:

"The right to wear hijab as an Article 19 right can be restricted under Article 19 (2)."

He went on to add that Rule 11 of the Karnataka Educational Institution (Classification, Regulation, and Prescription of Curricula) placed reasonable restriction as a matter of institutional discipline.

"There is no ban on wearing hijab in the country, but every institution has internal regulation and discipline," he added.

Further, citing the judgment in the Sabarimala case, the advocate general asked:

"In light of law laid down by the Supreme Court in the Sabarimala case, would it be possible to accept the wearing of hijab in light of constitutional morality and individual dignity?"

In the Sabarimala case, the constitution bench of the Supreme Court had ruled that all Hindu pilgrims of any gender could enter the temple, and held that "any exception placed on women because of biological differences violates the Constitution."

'What Would Be the State's Stand if Institutions Permitted Hijab,' Asks HC

The advocate general also submitted that the state government's order did not prescribe any ban on hijab. In response to this, the chief justice of the Karnataka High Court asked if independent institutions permitted hijab, what the stance of the state would be.

"It is argued that they may be permitted to wear the same colour headdress as permitted in the uniform prescribed by college, we want to know the stand of the State…"

Karnataka High Court

To this, the A-G responded by saying that they had not prescribed anything and the order gave complete autonomy to the institution to decide the uniform. However, he also added:

"…element of introducing religious dress should not be there in uniform. As a matter of principle, the answer is in preamble of Karnataka Education Act which is to foster secular environment."

Other Submissions

Meanwhile, making submissions on behalf of teachers, who have been made respondents in the case, senior advocate R Venkataramani showed support to the government order and said:

"State should not enter into matters of what constitutes religion whatever is essential and not essential. State will come in when it collides with public order, morality or health."

Appearing for a government pre-university college, senior advocate SS Naganand attempted to forge a distinction between essential religious practice and cultural requirements. He also said:

"Under Islam you have to pray. You can pray. But if you put a loudspeaker and play on high volume at 5 am, I can say I don't want to be woken up in morning. So, if in practicing your religion you are coming in the way of other people's peace, then where does the line lie?"

Meanwhile, a single-judge bench of Karnataka High Court has refused to grant interim relief to students of a degree college who had asked for protection of right to wear hijab. This comes even though the earlier interim order of the high court clearly does not apply to degree colleges.

The three-judge bench on Tuesday said that it will take up the petitions seeking clarifications of the interim order on Wednesday.

Previously...

Arguing that the Karnataka government was leaving it on the institutions to decide on the matter of uniform/dress code, Advocate General Prabhuling Navadgi had, on Monday, said that the wearing of a hijab cannot be considered an essential religious practice in Islam.

The advocate general also criticised the various petitioners in the ongoing case who had approached the court asking for protection of Muslim students' right to wear hijabs to classrooms, saying they had "placed zero material on record to show that wearing hijab is an essential religious practice."

During Tuesday’s hearing, Navadgi will argue before the bench of Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and JM Khazi how the wearing of a hijab doesn’t, as per him, meet the criteria that must be met in order to establish any particular practice is essential to a religion.

BACKGROUND

On 10 February, the Karnataka High Court had agreed to continue hearing the pleas filed by the girls, but had refused to pass an interim order that would have allowed them to continue wearing hijabs until the court arrives at a final decision.

While directing the reopening of colleges in the state, the judges had also controversially ordered that no student should wear any religious clothing while the court continues to hear the case.

"Pending consideration of all these petitions, we restrain all the students regardless of their religion or faith from wearing saffron shawls (Bhagwa), scarfs, hijab, religious flags or the like within the classroom, until further orders."

Karnataka High Court