Permitting Hijab A National Practice; Even Kendriya Vidyalayas Allow; State Can't Say It's Not Essential : Kamat To Karnataka HC

A Full Bench of the Karnataka High Court on Monday heard extensive arguments on behalf of the petitioner, a Muslim girl student who challenged the action of a government college in denying her entry for wearing a hijab (headscarf). Last Friday, the Full bench had restrained students from wearing any sort of religious clothes in classrooms, regardless of their faith, while the matter is pending hearing. The interim order is only applicable to those institutions which have prescribed a uniform dress code.At the outset of the hearing on Monday, the Chief Justice made a request to all media houses to be more responsible and ensure that they make an effort to maintain peace and tranquility in the State. "We are doing the live-streaming. Our only request to the media is, be more responsible. You are the fourth pillar", the Chief Justice further remarked. Addressing the concern raised by a counsel appearing for an intervenor that the Court should restrict media houses and should also prohibit any discussion on social media pertaining to the ongoing case in the wake of the upcoming elections in other States, the Chief Justice remarked, "We have made appeals to media. We can put off the live streaming if you all say. That is in our hands. We can't stop the media. As far as elections, you are not a voter of those states."The hearing will continue tomorrow, at 2.30 pm.Senior advocate Devadatt Kamat appearing on behalf of aggrieved students made extensive arguments on Monday. It is the petitioner's case that the right to wear hijab is an essential religious practice under Islam, and the State is not empowered to interfere with such rights under Article 14,19 and 25 of the Constitution. Courtroom exchange State government's declaration that wearing headscarf is not protected under Article 25 is totally erroneous: Kamat Referring to the Government order of February 5, 2022, senior advocate Devadatt Kamat made two-fold submissions. He underscored that the declaration made by the State government that wearing of headscarf is not protected by Article 25 of the Constitution is 'totally erroneous'. It was also submitted that the conduct of the State government in delegating to the College Development Committee (CDC) to decide whether to allow headscarfs or not is 'totally illegal'. The Court was further apprised that 'public order' is the only restriction that can be imposed on the fundamental right as guaranteed under Article 25 of the Constitution in the context of hijab (as it does not offend the other specified grounds of 'morality' and 'health'). Opining that maintenance of 'public order' is the responsibility of the State, the senior counsel further remarked, "Can a College Development Committee, consisting of MLA and subordinates, decide if this exercise of right is permissible?"At this point, the Chief Justice enquired, "the question is whether this right conferred under Article 25 is an absolute right or relative subjective to certain restrictions?" In response, the senior counsel averred "Article 25 rights are not subjected to reasonable restrictions as under Article 19." He reiterated that in this context, the only ground available to the State was "public order".Senior counsel Kamat further submitted that public order is not a mere law and order disturbance. When there is a heightened sense of law and order, it will be public order, it was submitted further. He further stated that the State has a 'positive duty' to ensure that people can exercise their fundamental rights and that no restriction can be imposed on such fundamental rights merely because a set of people objects to it. GO is unlawful as it delegates responsibility to CDC to decide whether headscarves should be allowed: KamatDuring the hearing, the Chief Justice questioned further, "Whether by this GO, State has put any prohibition on wearing head scarf?" Responding in the affirmative, the senior counsel reiterated that the Government order is unlawful so far as it delegates the matter to the CDC in taking a decision either to allow or prohibit headscarves. To such a submission, Justice Krishna Dixit orally observed that the word "law" as envisaged under Article 25 of the Constitution can be interpreted from its definition as enumerated under Article 13(3) of the Constitution. The Judge remarked that 'law' under Article 13(3) also includes byelaws, notifications etc.Responding to such an observation by the Bench, the senior counsel acknowledged that 'law' as envisaged under Article 13 of the Constitution also includes delegated legislation. "It includes delegated legislation which flows from primary legislation. I bow down to it", senior counsel Kamat responded to Justice Dixit's observation. However, Kamat added that "public order" was an essential State function and hence the CDC cannot be delegated to determine if hijab will violate public order.Wearing hijab is essential religious practice: KamatReliance was also placed on a Kerala High Court...

Permitting Hijab A National Practice; Even Kendriya Vidyalayas Allow; State Can't Say It's Not Essential : Kamat To Karnataka HC

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"State is an outside authority, it cannot say that wearing a headscarf is essential practise or not. It has to be seen from the view point of a believer", Kamat submitted

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