Hijab row: Karnataka HC appeals for peace, says ‘will go by Constitution’

“Having heard the parties and pending further hearing, which will be accomplished before long, the court requests the student community and public at large to maintain peace and tranquility…The court has full faith in the wisdom and virtue of the public at large,” Justice Dixit said. The case was adjourned for further hearing Wednesday.

In the hearing that spanned over three hours, the Court heard senior advocate Devadutt Kamath on behalf of the petitioners on the state’s lack of power to restrict wearing of a hijab.

“I am a Brahmin. My son goes to a school wearing a namam… Would that also not be permissible?” Kamath asked. The petitioners made four key arguments challenging the college’s ban on hijab and the Karnataka government order validating that decision.

Kamath cited the Supreme Court’s landmark 2017 ruling on the right to privacy to argue that the choice to wear a piece of clothing is part of the fundamental right to privacy. Kamath argued that fundamental rights, from freedom of speech and expression, privacy to religious freedom, can only be restricted by a legislation on grounds prescribed by the Constitution.

The Karnataka government notification is a declaration of an administrative rule under the Karnataka Education Act, 1983. Kamath criticised the state’s February 5 which justified a ban on hijabs, as being unconstitutional, premised on irrelevant judgments, and based on laws that do not give powers to dictate on uniforms.

Kamath argued that the ban is a violation of the right to freedom of religion as hijabs fall under “essential religious practices” in Islam. The ban also violates the right to freedom of expression and privacy, it was argued.

There has been no issue of public order over the hijab issue when the girls have been wearing the headscarves to college over the last two years, Kamath argued. The petitioners’ advocate said “religious apartheid’” was at play at the Kundapura college since girls who wore hijabs were segregated from other students on Monday.

Kamath also argued that the government does not have powers under section 7 of the Karnataka Education Act to issue orders on uniforms in colleges. He said that “The section a to h (under section 7 of the KEA) does not have anything to do with dress code.”

The Education department used clause 7 (2) (g) in the Act, which is meant to prescribe curriculum, to issue the order on dress codes that maintain equality and unity on pre-university college campuses.

At the start of Tuesday’s hearing, the court asked advocates to set aside their passions. “We will go by reason, we will go by law. This is becoming a very emotive issue unfortunately. This is how things happen in a society like ours. Leave all emotions outside. We will go by what the Constitution says — the Constitution is Bhagwad Gita for us, nothing else. It is a form of Bhagwad Gita for me because that is the oath I have taken. Keep all your emotions aside,” Justice Dixit said.

The High Court took up the petitions on a priority basis “to decide quickly on the issue in order to allow the students to get on with their education”, even as students wearing hijabs were harassed in some parts of Karnataka and saffron shawl protests were organised in several colleges in the coastal region.

The single-judge bench took up the hearing on three petitions filed on behalf of Muslim girl students from Udupi against restrictions placed on them attending classes wearing hijabs.

Justice Dixit refused to delay the hearing by stating the “students are waiting for a decision”. When advocates stated that more petitions are likely to be filed, the judge responded that “if one case is decided, that will take care of the rest of the cases”.

“We decide (the cases) on one principle — this or that. The numerical strength of the cases will not have any relevance on the merits of the cases. One judgment should have relevance to all cases. One Bommai decided what should happen to the rest of the case. We need not wait,” the court stated.

The court was referring to the landmark judgment by the Supreme Court in 1994 in the S R Bommai case, which laid down the law for the dissolution of state legislative assemblies by the Centre.

“We cannot keep the cases generating hope. They should know whether they should wear (the hijab) or not,” the High Court observed.

Initially, a proposal was made by Mohammed Tahir, advocate for Ayesha Almas and four other students from the Udupi government junior college for women, seeking a temporary solution by allowing the girls to wear scarves/dupatta as per the college uniform over their heads to classes.

The proposal was dropped due to lack of consensus after the Karnataka AG said larger issues were involved.

Senior Advocate Kamath presented arguments on behalf of two girls Aishat Shifa and Tairin Begum from the Government PU College at Kundapura in Udupi. In an interim plea on behalf of the students from the Kundapura college, it was argued that they should be allowed to write their exams, which are set to be scheduled shortly, since it would violate the right to education of the students as well.