State Hasn't Banned Hijab, Says Karnataka AG; If Institutions Permit, Will You Object? High Court Asks

A Full Bench of the Karnataka High Court today continued hearing 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). Today is the 7th day of the hearing before the Full Bench.When the hearing started, the bench led by the Chief Justice sought a clarification from the State regarding its stand on banning hijab. This arose in view of the AG's submission that the Government Order dated February 5, which has been challenged in the writ petitions, does not prescribe any ban on hijab and that it is only an "innocuous" order which asks students to follow the uniforms prescribed by their institutions."What is your stand?Whether hijab can be permitted in institutions or not?", the Chief Justice raised a pointed query."The operative portion of the GO leaves it to the institutions", the AG submitted."If institutions permit hijab, you have objections?", the CJ asked further"If the institutions are to permit, we would possibly take a decision as and when the issue arises...", the AG responded."You have to take a stand", the CJI reiterated."It is argued that they may be permitted to wear the same colour headdress as permitted in uniform prescribed by the college. We want to know the stand of the state? Suppose if they are wearing duppata which is part of uniform, can it be allowed?", the CJ asked further."My answer is that we have not prescribed anything. The Order , it gives complete autonomy to institution to decide uniform. Whether students be allowed to wear dress or apprarel which could be symbol of religion, the stand of the state is.. element of introducing religious dress should not be there in uniform. As a matter of principle, the answer is in preamble of Karnataka Education Act which is to foster secular environment", the AG said.It may be recalled that on the last hearing date (February 18), the AG had conceded that the GO could have been worded in a better manner and the references to hijab could have been avoided."On a better advise, these could have been avoided. But that stage has passed," the AG had submitted then. The AG had also said that the draftsman of the GO went "over enthusiastic" by referring to unity and public order in it. Why should Court decide on Article 25 if state has not banned hijab? HC asksIf that is the stand of the State, the CJ asked, whether it was necessary to go into the constitutional question if hijab was essential religious practice.The AG said that the question might be necessary as institutions can bar hijab. He submitted that in this case, the Udupi Pre-University College has taken a stand that we will not allow wearing of hijab in the institution. So, this issue might have to be gone into by the Court."The second issue (ERP) might be necessary because of this. Let us say this institution is before your lordships. The question that would be posed can you prevent someone from entering the institution for wearing hijab. If lordships are to decide that wearing of hijab does not fall under Article 25, then it would be different for students and institution. The entire question revolves around whether wearing of hijab falls under Article 25.""In Feb 5 order (GO), we do not decide anything. I say so because, from Shirur mutt case it has evolved, State unless it is a secular activity should not involve in religious practises…If we had decided the hijab cannot be worn, it would have been seriously challenged on the ground that State has interfered in a religious matter."He relied on Justice DY Chandrachud's decision in Sabarimala case to submit that a Constitutional court has an important role to decide whether a religious practice can be permitted the protection under Article 25."GO is innocuous and it is consciously so. This question, controversy would not have arisen. If petitioners would have come and said the college is not permitting us to wear hijab as a head scarf, it is different. But they want to wear this head scarf as a religious symbol."The Court pointed out that College Development Committees are not statutory bodies (as they are created under a Government Circular), and that private institutions may not be amenable to writ jurisdiction.Burden on Petitioners to show that wearing hijab is essential religious practice: AGNavadgi told the Bench comprising Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi that wearing hijab is not an Essential Religious Practice and is thus not protected under Freedom of Religion under Article 25 of the Constitution. Further, it would not come within the concept of Freedom of Conscience under Article 25 of the Constitution."Protection under Articles 25 & 26 of the Constitution is with respect to religious practice which forms an essential and integral part of the religion. Thus, a practice may be a religious practice but not an essential &...

State Hasn't Banned Hijab, Says Karnataka AG; If Institutions Permit, Will You Object? High Court Asks

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State Hasn't Banned Hijab, Says Karnataka AG; If Institutions Permit, Will You Object? High Court Asks

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