Hijab Row: What Karnataka HC Has Said in Order Restraining Religious Clothing

A single-judge bench of the Karnataka HC on 9 February had referred the petitions to a larger bench.

Karnataka Hijab Row

(Photo: The Quint)

Video Editor: Mohammad Irshad

A three-judge bench of the Karnataka High Court heard arguments on the petitions requesting Muslim girls wearing hijabs to be allowed to attend school, but surprisingly, refused to pass an interim order allowing the girls to attend classes wearing their headscarves until a final adjudication.

Instead, the bench of Chief Justice Ritu Raj Awasthi and Justices Krishna Dixit and JM Khazi passed an interim order prohibiting any student from wearing any religious clothing while they consider the legal issues involved.

"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 is a matter of a few days only," the chief justice of the Karnataka High Court had said during the hearing on Thursday, rejecting the argument raised by senior advocate Devadatt Kamat (for a group of Muslim girls denied entry to their college on 3 February) that this would amount to a suspension of the right to practice one's religion under Article 25 of the Constitution.

The order does not specify any particular reasoning for its rejection of the request by lawyers for the Muslim girls that they be allowed to wear their headscarves till a final decision was made.

The order only notes that the right to practise faith of choice is subject to reasonable restrictions, and that whether "wearing of hijab in the classroom is a part of essential religious practice of Islam in the light of constitutional guarantees, needs a deeper examination."

It also states that "Ours being a civilized society, no person in the name of religion, culture or the like can be permitted to do any act that disturbs public peace & tranquility", and that the interests of students are better served by their returning to classes.

Senior advocate Sanjay Hegde had earlier made impassioned arguments on why an interim order protecting the girls' freedom of conscience was required till a final decision was made.

"Freedom of conscience is also part of Article 25. Having taken a conscientious decision to wear the headscarves, can the girls be made to go back to school without it," he had asked. "This is not just a case of essential religious practice, it is a case of essential education for the girl child," he added.

Hegde, who is arguing for one of the girls who was originally denied entry to her government-run pre-university college in Udupi, pleaded with the court to issue a direction to the Advocate General of Karnataka Today "to do something in a manner which protects the dignity of everyone."

However, the Advocate General, representing the state government, insisted that there should be no interim order allowing the girls to wear hijabs to their classrooms. And by the end, the Chief Justice went by this logic, saying that institutes had to reopen, and this was the best solution.

In doing so, he ignored the arguments by Hegde on how there was no actual law which banned the wearing of a headscarf, and that the girls had actually been complying with existing uniform rules which allowed shawls/dupattas of the same colour as their uniforms.

Kamat pointed out that the Karnataka government order from Saturday which insisted on uniforms claimed that the courts had previously held that the hijab is not part of the essential religious practices of Islam – even though the judgments cited by them said nothing of the sort.

Both the senior advocates noted the protection of freedom of conscience by the Supreme Court in the landmark Bijoe Emmanuel case, where the apex court had overturned decisions by a school to expel students from the Jehovah's Witnesses faith who would not sing the national anthem for religious reasons (even though they would stand up for it).

The main arguments in the case, including whether wearing of the hijab is an essential religious practice for Muslim girls, and to what extent this can be restricted by the state, will be taken up by the bench from Monday, 14 February onwards at 2:30 pm.

The arguments in the hearing on Thursday were livestreamed on the high court's YouTube channel. They can be viewed here:

What Happened in the HC on Wednesday?

Justice Krishna S Dixit, who had been hearing the petitions, felt that the issues would have to be looked at by a bench of more judges, given the concerns of law involved in the matter, and the need to consider the validity of prior decisions on similar matters by the Kerala and Madras High Courts.

The judge had also observed that he could not pass any orders for interim relief at this time, for instance, to allow all students to attend courses until the larger bench makes a decision.

"Even interim prayers merit consideration at the hands of a larger bench that may be constituted by the Chief Justice in his discretion," he held, although he did include a note of urgency to the court registry for the larger bench to be constituted in the order.

A number of disruptions were reported on Tuesday at colleges in the state, including stone pelting, hoisting of saffron flags, and heckling of Muslim girl students by male students wearing saffron scarves.

'Let's Wait for HC,' Says CJI as Matter Reaches SC

Meanwhile, the matter reached the Supreme Court on Thursday with senior advocate Kapil Sibal indicating that a petition has been filed and sought an urgent mentioning of the same before Chief Justice of India (CJI) NV Ramana, Bar and Bench reported.

While Sibal suggested that the matter be listed and no orders be passed on it for now, the court said that it won't be heard by the high court if the apex court passes any order, so it's better to "wait for one or two days."

Bommai Warns 'Outside Elements'

Meanwhile, Karnataka Chief Minister Basavaraj Bommai on Thursday said that no attempts should be made to disrupt law and order.

"The case is before the larger bench. The hearing is at 2.30 pm. Colleges are closed to avoid trouble between students. Outside elements should not provoke and instigate law and order situation. It is the responsibility of all organisations. Let's wait for a verdict by the court," Bommai said.