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An interim order passed by the Karnataka High Court last week, restricting the use of religious symbols by students in educational institutions until further orders on petitions against a hijab ban in some government colleges in Udupi, has been “grossly misused” in the state — and amounts to suspension of fundamental rights, advocates for the petitioners told the court on Tuesday.
With colleges in the state set to reopen on Wednesday, advocates for the Muslim girls who have questioned the hijab ban also sought relaxations in the interim order. While the interim order was restricted to educational institutions with a dress code, it has been interpreted as a general ban in many districts with some high schools, which reopened on Monday, preventing the entry of hijab-wearing teachers as well.
“The sweep of your lordships’ order is extremely broad. I say that it is in the teeth of Article 25 and other Constitutional rights. Kindly make some leeway while lordships are examining issues of grave Constitutional significance and seminal importance,” senior advocate Devadatt Kamat told a full bench of the High Court.
The full bench of Chief Justice Ritu Raj Awasthi, Justice Krishna M Dixit and Justice J M Khazi, is hearing a batch of petitions filed by Muslim girls from government pre-university colleges in Udupi against the hijab ban following protests on campuses over the row. The court adjourned further hearing of the case to Wednesday.
“In the meanwhile, please allow us to carry out this innocent act of faith subject to whatever conditions your lordships may impose. We will wear the same uniform and wear an additional head scarf. This consideration is going to take time. This (interim) order suspends fundamental rights. Please do not continue this order,” Kamat argued.
Chief Justice Awasthi, however, indicated that “nothing was decided” in the interim order of February 10.
Another advocate representing the students, Mohammed Tahir, presented a statement of facts to the court while seeking a clarification on the interim order. “The order passed by the High Court has been grossly misused. They are using this order in every institution. Muslim girls are being forced to remove their hijabs,” he told the court.
The application made by Tahir was rejected by the court on the grounds that none of the students who are petitioners had signed the memo.
In its interim order, the High Court had said that “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”.
It said that the order “is confined to such institutions wherein the College Development Committees have prescribed the student dress code/ uniform”.
During Tuesday’s hearings, Senior Advocate Kamat told the High Court that Indian secularism is “positive secularism” unlike secularism in countries like Turkey where “negative secularism” is prescribed by the Constitution.
Kamat also cited Supreme Court orders that the state cannot abdicate its duty of protecting fundamental rights by citing public order issues that could arise while exercising the right.
The High Court was also informed of examples from courts in South Africa, Canada and the UK where rulings have allowed minority groups to wear symbols of their culture and faith in schools, including a nose ring by an Indian girl in South Africa, since freedom of religion and cultural practices are protected by the Constitutions of those countries.
“Considering the principles that have been laid down in this judgment (South African court) and which has been followed by our Supreme Court, the wearing of a headscarf is such an innocuous practice, which is completely protected by Article 25 (of the Constitution),” Kamat argued.
The “state cannot cite facile grounds of public order to curb fundamental rights but should create the environment to facilitate exercise of fundamental rights”, he argued, citing Supreme Court orders. “The state says if some wear a headscarf there will be galata (trouble), therefore we are stopping everything, cannot be the reason,” Kamat said.
Referring to the interim order, he said: “In our secular state, what your lordships had in mind was that no one should display religious symbols. Our secularism is not Turkey’s secularism, our secularism is positive secularism where the state plays an enabler role for the exercise of fundamental rights, religious freedom of all communities. We recognise all religions as true.”
The Muslim girls in Udupi will not change their uniforms but a “small exemption will be in line with freedom of expression”, he said. Freedom of appearance is part and parcel of Article 19 (1) (a) (freedom of right to speech and expression) and Muslims are protected as a cultural minority under Article 29 (2), Kamat argued.
Former advocate general of Karnataka, Prof Ravi Varma Kumar, who argued briefly for the students on Tuesday, said that the College Development Council that is empowered by the Karnataka government to decide on uniforms is not a statutory body identified under the Karnataka Education Act of 1983. He also argued that the government has not prescribed uniforms for colleges until now.
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