State assures no untoward action on hijab: Karnataka AG

Although the High Court’s interim order of February 10 said that dress codes can be enforced only in colleges where they have been prescribed, it has been interpreted by Education and state authorities as a general ban on wearing religious attire to colleges.

“I have addressed a letter to the Chief Secretary and asked him to convene a meeting of all concerned. I have communicated with the principal secretary of the Education department and they have assured us that nothing untoward will be done. All action taken will be reported to the court,” the advocate general told the full bench of the High Court.

The full bench of Chief Justice Ritu Raj Awasthi, Justice Krishna M Dixit and Justice Jaibunnisa M Khazi is hearing the batch of petitions against the hijab ban that led to protests on campuses across the state.

On Monday, the full bench raised the question as to whether it was necessary for the court to delve into the issue of whether the hijab is an essential religious practice and whether it would be a part of the fundamental right to freedom of religion.

“Are we required to go into all these Constitutional questions? Whether it is an essential religious practice or not, or whether it amounts to violation of Article 25, is it necessary for us to look into these aspects?” Chief Justice Awasthi asked the advocate general. Navadgi contended that the question of whether the hijab is a fundamental right is at the core of the pleas before the court.

“You have argued that the government order (of February 5 that specified norms for uniforms in schools and colleges) is totally innocuous and that you did not issue any direction restricting the wearing of the hijab. Your stand is that the state government has not imposed any restriction on hijab and that only the uniform prescribed by the pre-university institutions must be followed. What is your stand on whether the hijab can be allowed in the institutions or not? If institutions permit, then you do not have any objections? You have to make your stand very clear,” the Chief Justice said.

“If an institution was to permit hijab or prohibit hijab, then we will take a decision as and when the situation arises,” Navadgi replied.

“As a matter of principle, on whether students should be allowed to wear a dress or any apparel, which has religious symbolism, the answer is that the preamble of the Karnataka Education Act itself seeks to foster a secular outlook. The stand of the state is that religious elements should not be introduced in educational institutions,” he said.

Navadgi argued that the status of hijab cannot be raised to the level of a fundamental right under Article 25 of the Constitution. “The petitioners have not placed any material to substantiate their claim for wearing hijab as a fundamental right since it is not an essential religious practice in Islam,” he said, while claiming that they had only quoted from the Quran to show that wearing of hijab is a religious practice.

Responding to arguments by the petitioners, the advocate general said they “have sought a declaration that every woman who follows Islam religion is required to wear the hijab, they want a declaration, which can bind every Muslim woman”.

“I am nobody to criticise but I can say with some responsibility that you (the petitioners) must have shown some circumspection and discretion when seeking a declaration before a Constitutional court binding not only petitioners but everyone,” Navadgi argued.

While the state government has pinned the case on the test of essential religious practice, Justice Khazi asked if it would also apply to freedom of conscience and not just to religion. This crucial line of questioning — on whether the right to wear a hijab can be found outside the right to religious freedom — is the first intervention by the judge in the case.

“How you manifest your conscience amounts to religious practice. Question of essential religious practice does not come in freedom of conscience,” the advocate general said, arguing that the freedom of conscience and right to religious freedom are mutual.

“Subject to public order, morality and health and to the other provisions of this part, all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion,” Navadgi said, referring to Article 25.

Over the years, the advocate general argued, the Supreme Court has evolved the “essential religious practice” test to protect only those that are seemingly essential to practice of religion under Article 25. Citing Supreme Court decisions from the 1950s, he argued that the petitioners’ case fails the test laid down by the court.

He argued that for a religious practice to be safeguarded by Article 25, it must be established first as a religious practice, then as an essential religious practice, and then whether it affects public order, health and morality, and whether it is in conflict with other fundamental rights.
“In the case at present, petitioners have claimed the hijab to be a fundamental right without establishing it is an essential religious practice… If the wearing of hijab is not obligatory, then it is not essential,” Navadgi argued.