Bengaluru, (UNI) Hearing a bunch of petitions pertaining to the hijab controversy, the Karnataka High Court on Tuesday requested the student community and public at large to maintain peace and tranquility pending further hearing of the matter. “Having heard counsel for the parties and pending further hearing of the matter, this court requests the student community and the public at large to maintain peace and tranquility,” the court said.
This court has full faith in the wisdom and virtue of the public at large and hopes the same would be put to practice, it observed before adjourning the hearing to 2.30 pm on Wednesday. The court adjourned the matter soon after recording the submissions made by senior counsel Devdatt Kamat, who is appearing for petitioners challenging the ban on hijab wearing on college campuses in Karnataka. This appeal comes in the wake of protests turning violent in various parts of the state over the hijab row. Kamat made his submissions on three fronts. Firstly, wearing of hijab is essential practice of Islam.
Secondly, the grounds of public order will not pass constitutional muster and, thirdly, there is a positive duty on the state to maintain public order. Before concluding his submissions, Kamat prayed for an interim relief by allowing the petitioners to attend classes in view of approaching exams. Intervening the proceedings, Justice Krishna Dixit said: “When he was studying, these kinds of things did not happen.”
At the beginning of the hearing, the High Court said it would keep emotions aside and go by the Constitution. After resumption of the hearing post-lunch session, the court had to remove a few people who had logged in to the virtual hearing on Zoom just to make way for the Advocate General to log in. He could not log in as the platform has a maximum of 500 people. Continuing his submissions, Kamat said merely saying law and order will be disturbed is not sufficient and to give it the colour of public order is an attempt to put the cart before the horse.
“The State cannot curtail fundamental rights of citizens on the facile ground of public order,” he said, citing Supreme Court judgment. The state should take action to facilitate exercise of fundamental rights and not in derogation of the same, he said, and added that if goons were creating disturbance, the State has to ensure that the girls can exercise their right.
There might be an argument that ‘education is a secular activity, why can’t the girl students do religious practices at home, but secularism in India is different and it practices positive secularism, Kamat said. India does not follow western secularism where the state completely stays away from religious activities, he argued. Referring to how hijab wearing students were forced to sit separately in one institution, Kamat said it was a kind of religious apartheid. Kamat cited authorities to emphasise that headscarf is part and parcel of Islamic faith.
“I am a Brahmin and my son wears Namam to school. Can the school tomorrow say it affects public order? The petitioners are wearing hijab and not creating any disturbance to anyone,” he argued. In the pre-lunch session, Kamat argued that wearing of hijab is an essential part of Islamic religion and is protected by right to expression under Article 19(1)(a) and can be restricted only on grounds under Article 19(6).
Moreover, wearing hijab is a facet of right to privacy recognised as part of Article 21 by the Puttaswamy judgment of the Supreme Court, Kamat said. Also, the government order is outside the scope of Karnataka Education Rules and state has no jurisdiction to issue the same, he said. Reading out Quranic verse 24.31 on dress code, Kamat said it mandates that the neckline should not be revealed to anyone other than husband.
“Two injunctions in the holy Quran have been interpreted in several judicial decisions. One such decision is of Kerala High Court,” he said. Further reading out a judgment, Kamat said the right to practice religion is a fundamental right subject to public order, health and morality. He argued that the state cannot say what is an essential practice of a religion and what is not.
That is the sole domain of Constitutional courts. “Ultimately it boils down to this: whether the practice is essential to the religion or not. If a religious tenet does not allow women to become a priest, then the state cannot impose the same,” Kamat said.
He argued that religious practice cannot be tested on secular thoughts outside of religious authority, thus the secular thought cannot determine what is essential to a religion and what is not. Kamat also submitted that the Karnataka relies on the Kerala High Court judgment to say hijab is not essential to Islam. This judgment is, however, not applicable at all, he said.
