Hijab Case- Sabarimala Judgment Was Pro-Choice; Constitutional Morality Is A Restriction On State Power : Sr Adv Kamat Argues In Karnataka HC

Senior Advocate Devadatt Kamat today made his rejoinder arguments for Muslim girl students, who are before a Full Bench of the Karnataka High Court, challenging the action of a government PU college in denying their entry for wearing a hijab (headscarf). Today is the 10th day of the hearing before the Full Bench.The Bench comprising Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi said it will conclude the hearing tomorrow and reserve judgment thereafter.Today, it also heard Senior Advocate AM Dar for students of another college who were denied entry. It also heard Senior Advocate Guru Krishnakumar for the Respondents.Kamat argued that people who want to wear head scarf are denied right to education on the pretext of this GO. "Their right to education which is paramount is being put on back burner. As a state you should facilitate and create an enabling atmosphere."Opposing State's submissions on the aspect of Constitutional Morality, Kamat added that Sabarimala and Navtej Johar judgments that were cited by the Advocate General are "pro-choice" judgments. "Constitutional morality is pro-choice. It is a restriction on state power," he said.He also made detailed submissions on the issue of Essential Religious Practice and protection under Article 25 of the Constitution. Details below.Yesterday, Senior Advocate S. Naganand, appearing for govt PU college, its principal and lecturers had alleged that the so-called student protests are being organized by the 'Campus Front of India', purportedly a radical organization, following denial of its request by the authorities for wearing of hijab.Responding to this, the AG today apprised the Court that FIRs have been registered on the complaints made by teachers and a report on the same will be placed on record in a sealed cover.Rejoinder arguments by Petitioners Kamat pointed out that the State has failed to reply to the submission made by the Petitioners that they have been wearing headscarves since their admission, 2 years ago, and there was no objection to the same, until December 2021. He stated, "I have not sought a general declaration for wearing of hijab. I have sought for quashing of the GO and for allowing the petitioners to wear. Second relief is consequential to the quashing of the GO." He then submitted that the primary challenge is to the GO, which the Advocate General has given up to quite some extent. It may be recalled that before the operative part of the GO, it contained a paragraph that observed that banning of hijab will not violate Article 25, after referring to a few High Court and Supreme Court judgments. When the Bench inquired on these aspects, the AG hadconceded that the draftsman went a bit "enthusiastic". He further conceded that the reference in the GO relating to restrictions on hijab "could have been avoided". In this backdrop, Kamat submitted, "Much of my task as far as far as this GO is concerned has become very easy, because of the 90 percent of GO has been given up by the AG. It has been conceded. Learned AG in all fairness on first day of opening has clearly said that this is not the purport of the order. He has said that it could be result of over enthusiasm and he has said it may be not required. Firstly, none of those judgments cited are applicable. AG kept on saying till the end that he will explain those judgements, but they were not explained. According to me this part of the GO has to go. Second, even if lordships were to discard the concession made by AG. This portion of the GO also has to go because it offends the doctrine of dictation in administrative law. AG says operative portion is innocuous but master is saying hijab is not essential. Third, reason why this penultimate part has to go, apart from concessions and doctrine of dictation, is that there is no material. If the judgements are irrelevant, then what is the material to come to understand that hijab is not permissible." He stated that the AG has given up the "public order" ground in the GO. "In the affidavit the state say they are doing it on the ground of Public Order. There is a version of public order in the GO, given up by the AG in the arguments. A definition of Public order against the constitution is put. Is this the way a GO is framed?" Next, he moved the issue whether the College Development Committee, also comprising of MLAs, has the jurisdiction to prescribe uniforms. He stated that the challenge is not to the constitution of a the CDC, rather, the challenge is to the vesting of "executive functions" on the CDC, which are otherwise for the authorities under the Education Act. "An MLA is not an officer subordinate to the state govt and that is covered by SC judgement in the case of Ashwini Kumar…As long as the CDC remains a Marga Darshak mandal, I don't have any problem. Let them remain as a guiding force. But the problem is when statutory...

Hijab Case- Sabarimala Judgment Was Pro-Choice; Constitutional Morality Is A Restriction On State Power : Sr Adv Kamat Argues In Karnataka HC

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