Hijab Not Essential Practice Of Islam, Karnataka AG Says; What Was Necessity Of Saying This In GO, Asks High Court?

A Full Bench of the Karnataka High Court today heard Advocate General Prabhuling Navadgi on behalf of the State, in the petitions filed by Muslim girl students, who have challenged the action of a government college in denying their entry for wearing a hijab (headscarf).Navadgi told the Bench comprising Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi that he will argue primarily on the following grounds:(i) wearing of hijab does not fall within the essential religious practise of Islam;(ii) right to wear hijab cannot be traced to freedom of expression under Article 19(1)(a) of the Constitution;(iii) Government Order dated February 5 empowering College Development Committees (CDCs) to prescribe uniform is in consonance with the Education Act.He stated that hijab certainly comes under the manifest exercise of the right to practice religion. However, on a specific query by the Bench if hijab forms part of the 'essential religious practice', the AG responded in the negative.He further submitted that the practise of wearing hijab must pass the test of 'Constitutional morality' and individual dignity as expounded by the Supreme Court in the case of Indian Young Lawyers Association v. State of Kerala (Sabarimala judgment) and Shayara Bano v. Union of India (Triple Talaq judgment).The arguments will continue on Monday.Fundamental Rights under Article 25 subject to reasonable restrictions: StateSo far as protection under Article 25(1) of the Constitution is concerned, the AG mentioned that the provision starts with a non-obstante clause. Further, Article 25(2) does not prevent the State from making a law to regulate or restrict the fundamental right.The AG submitted that the series of rights under Article 19 can be regulated only by a "law to be made by the State". However, that is not a requirement under Article 25, and this right is subject to "public order, morality and health".If somebody is to assert the exercise the right to freedom of religion. The court will have to see if this exercise affects public order, morality. Whenever challenge comes before court, first test according to me, whether it comes against public order, morality or health. AG said he will elaborate more on the aspect of essential religious practice on Monday.GO in consonance with Education Act: StateIt may be noted that the petitioners have argued that the Education Act is a complete code in itself, and the so-called College Development Committee does not find mention under the statute. Hence, the State could not have delegated upon it the power to prescribe unfirms.Responding to this, the AG today argued that GO dated February 5 empowering College Development Committees (CDCs) to prescribe uniform is in consonance with the Education Act. In this regard, he cited a Circular issued by the government in 2014, constituting the CDC."CDCs are there since 2014. None of the colleges have come before the Court questioning the CDCs. Students have come before the court and say that the authority is extra-statute. The challenge must fail on that ground itself."He then submitted that constitution of CDC was done under Section 133(2) of the Act which gives residuary powers to the State. "Kindly look at the constitution of CDC, there cannot be a more representative character...There is a local MLA, parents representative, students representatives and others. The entire fulcrum comes together. Therefore there cannot be such a criticism to such a committee," the AG insisted.The Bench however noted that the 2014 Circular, constituting the CDC, was been issued by an under-secretary. "Can that be treated as an order under Section 133? This is not a govt order, it is not a notification. It is a circular by under-secretary," the Chief Justice asked.The AG responded that such circulars are issued by the approval of the Government."Was the govt approval there?" the Chief Justice further inquired."Certainly, yes. I can place the records. Where a MLA is appointed to the committee, it would not have been without approval of the government," the AG said adding that he will produce the relevant files on record. The Chief Justice said that a clarification is needed on this aspect to appreciate the arguments of the AG.The AG further said that there is a provision under the Act that if students find any problems they can give representation to PTA or State. "A normal student would have been expected to give a representation...They have come here directly," AG said.Whether the presence of MLAs on CDC gives it political character to institutions?Justice Dixit asked the Advocate General as to the need for appointing MLAs to the CDC, purportedly meant to oversee academic welfare of students. "...can those political views enter the campus? It is not that we have no respect for MLAs. But point is, MLA is a more political character. Whether that character should have overtone in the administration of an education institution? It is not about this...

Hijab Not Essential Practice Of Islam, Karnataka AG Says; What Was Necessity Of Saying This In GO, Asks High Court?

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