'Right to Education Put On the Back Burner': Senior Advocate Kamat in Hijab Case

Kamat said that the Sabarimala and Navtej court judgments that were cited by the A-G were, in fact, pro-choice.

The Karnataka High Court on Thursday, 24 February, entered the 10th day of hearing petitions by Muslim women seeking protection of their right to wear hijabs in educational institutions.

(Photo: The Quint/Chetan Bhakuni)

The Karnataka High Court on Thursday, 24 February, entered the 10th day of hearing petitions by Muslim women seeking protection of their right to wear hijabs in educational institutions.

Making his rejoined arguments in the case filed by the Muslim girls, senior advocate Devdatt Kamat, on Thursday, said that on the pretext of the government order, "the right to education, which is paramount, is being put on the back burner."

Kamat further told the court that the state had failed to reply to the petitioners' submissions that they had been wearing headscarves since the time of their admission to the institute and there had been no objection till December 2021.

The three-judge bench of the Karnataka High Court, headed by Chief Justice Ritu Raj Awasthi, is likely to finish hearing the petitions on Friday and reserve its judgment.

A-G Has Made My Task Very Easy: Sr Adv Kamat

Senior advocate Kamat said that much of his task, as far as the government order was concerned, "has become very easy." This, he said, was because "90 percent of the government order has been given up by the Advocate General."

"It has been conceded," said Kamat.

Previously, on 18 February, referring to the last portion of the order which talked about clothes being in consonance with unity and equality, Advocate General Prabhuling Navadgi had said:

"Here, the draftsman went a bit enthusiastic. What was meant was, in case no uniform is prescribed, please wear decent clothes. I agree it could have been worded better."

Navadgi had also said that the reference in the order relating to restrictions on hijab use "could have been avoided."

But Kamat did point out that even if the Navadgi's concessions were discarded by the court, the referred-to portion of the order must be removed as it "offends the doctrine of dictation in administrative law," and "there is no material."

'Constitutional Morality Is Pro-Choice'

Further, Kamat went on to claim that the advocate general did not explain the judgments he had cited, despite saying that he would, and added that "none of those judgments cited are applicable."

Besides, Kamat said that the Sabarimala and Navtej court judgments that were cited by the advocate general were, in fact, pro-choice.

"Constitutional morality is pro-choice. It is a restriction on state power."

Devdatt Kamat

In response to colleges arguing that permitting hijab would cause students from other religions to insist on displaying their symbols, Kamat said that decisions on a constitutional jurisdiction were based on facts, not a hypothesis.

He went on to reassert that wearing the hijab was an essential religious practice, and pointed out that the respondents had not disputed the two judgments of Kerala High Court and one judgment of Madras High Court, which held the hijab and headscarf essential religious practice.

Meanwhile, senior advocate AM Dar, representing the students of New Horizon College who were also allegedly denied entry, said the hijab was the last commandment from Allah and was mandatory in Islam.

He also said that he had studied Arabic and sought to assist the bench with the interpretation of the Quran.

Background

Previously, on Wednesday, the court had clarified that its interim order from 10 February applied to both degree colleges and pre-university colleges, where uniforms were prescribed. The court, however, had added that the order applied only to students and not teachers.

On 10 February, the Karnataka High Court had agreed to continue hearing the pleas filed by the girls but had refused to pass an interim order that would have allowed them to continue wearing hijabs until it arrived at a final decision.

While directing the reopening of colleges in the state, the judges had also controversially ordered that no student should wear any religious clothing while the court continued to hear the case.

"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."

Karnataka High Court