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The Karnataka High Court is hearing a challenge to the constitutionality of the state government’s ban on students wearing a hijab in educational institutions. In Tuesday’s hearing, the judges heard an argument on whether the state can justify the ban on the ground that it violates ‘public order’.
Public order is one of the three grounds on which the state can restrict freedom of religion. Public order’ is also one of the grounds to restrict free speech and other fundamental rights.
Article 25 of the Constitution guarantees to all persons right to freedom and conscience and the right freely to profess, practise and propagate religion subject to public order, morality and health.
Public order is normally equated with equated with public peace and safety. According to List 2 of the Seventh Schedule of the Constitution, the power to legislate on aspects of public order rests with the states.
According to the government order issued on February 5 under the Karnataka Education Act, 1983, “public order” is one of the reasons for not allowing students to wear a headscarf in educational institutions along with “unity” and “integrity.”
The petitioners have asked the state to show how the mere wearing of a hijab by students could constitute a public order issue. “This is not a case where a religious practice involves a public gathering where dangerous weapons are paraded…,” the petitioners’ counsel Devadutt Kamat argued.
The second argument made is that the government cannot delegate to college committees the function of determining whether the hijab was detrimental to public order. The government order states that while individual college committees are free to determine the uniform, in the absence of such rules the government order banning the headscarf would apply. Kamat argued that only the government can make an assessment of public order.
How has the state responded?
Karnataka’s Advocate General has argued that the government order makes no mention of “public order” and that the petitioners reading of the order could be an error in translation. The order, in Kannada, uses the words “sarvajanika suvyavasthe”.
Of the three judges on the Bench headed by Chief Justice Ritu Raj Awasthi, both other judges —Justices Krishna Dixit and Jaibunnisa Khazi — are conversant in Kannada. While Justice Dixit observed that the interpretation by the petitioners might not strictly apply, he asked for an official translation.
Incidentally, the official Kannada translation of the Constitution uses “sarvajanika suvyavasthe” for “public order” in all nine instances.
How has public order been interpreted by courts?
What affects public order is contextual and is determined by the state. But courts have broadly interpreted it to mean something that affects the community at large and not a few individuals.
In Ram Manohar Lohia vs State of Bihar (1965), the Supreme Court held that in the case of ‘public order’, the community or the public at large have to be affected by a particular action. “The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large.
One has to imagine three concentric circles, the largest representing ‘law and order’, the next representing ‘public order’ and the smallest representing ‘security of State’.”
In the Karnataka case, the petitioners have argued: “Public order is not every breach of law and order. Public order is an aggravated form of disturbance that is much higher than a law and order issue.”
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