Karnataka HC’s Verdict On Hijab Case Awaited
Bengaluru, Feb 28: After completion of the hearing in the hijab case, the nation now awaits the verdict of Karnataka High Court. On the 11th day of the hearing, the three-judge bench completed hearing all the parties and reserved its verdict last week. Watched by millions live not just in India but across the world, on its youtube channel, the proceedings invited strong reactions, just like the incident that led to the suit.
During the hearing, the bench comprising Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and JM Khazi had posed questions to petitioners (girl students pressing for wearing hijab) and respondents (state government and CDCs). Though one can gauge the line of judgement the judges might deliver by analysing the questions posed by them, it is a daunting task to really fathom the minds of the Lordships.
However, it is left to the readers to find for themselves answers lying in the questions posed by the Lordships. The Karnataka Chief Justice, Ritu Raj Awasthi, was very vocal from the beginning of the hearing. On the first day of the hearing before passing the interim order, he told the petitioners that they should not insist on wearing religious dress that are not conducive and would restrain everyone from adopting these practices.
On Article 25, the chief justice asked senior advocate Devadatt Kamat whether the Government Order (GO) giving power to the College Development Committee to prescribe uniform, restricts the fundamental right to practice religion under Article 25. The chief justice also sought to know how can the petitioners insist on wearing hijab in an institution which has a uniform asking them to establish which of their fundamental rights have been infringed upon. He also queried whether the petitioners were wearing hijabs for considerable time or were they started to wear it as recently as December 31 last year as was alleged by respondents.
Chief Justice Aswasthi also clarified time and again that the GO does not mention anything about hijab but only entitles CDC to prescribe uniform which is provided under the Karnataka Education Act. The chief justice also asked cannot the college prescribe uniforms to maintain discipline and uniformity that are essential to maintain academic standards. The chief justice observed that the dress code prohibits headdress not only to one particular community, but to everyone, and therefore Article 15 cannot be invoked that prohibits discrimination on the grounds of religion.
He also observed that the state has imposed an express ban on hijab, but only in the classroom during teaching hours only. Chief Justice Awasthi also posed some pressing questions to the state as well. One of the first things he sought to know from Advocate General Prabhuling Navadgi was, the legal sanctity of the CDC and the reasons for bringing the GO in question. He queried if the GO is prima facie innocuous why it referred to other high court verdicts on hijab.
Chief Justice Awasthi further asked whether the state would not object to the CDC permitting students to wear hijab. To which, the state replied that it would take a decision as and when such a situation arises. As of now the state argued that anything that introduces a religious aspect should not be allowed and it is left to the institution. The chief justice observed if the CDC has prescribed the dress code then can it be subject to court orders, since it is not a statutory body. He also observed that stopping hijab would infringe the freedom of conscience guaranteed under Article 25(1). Justice Krishna S Dixit also posed some probing questions.
He asked the petitioenrs whether wearing hijab is an essential part of Islam or susceptible to regulation by law. On inclusion of MLA as part of the CDC, he observed that the MLA is only one of the many members and it cannot be assumed that the power only rests with him. Justice Dixit asked the petitioners to refer to judgments that say that MLAs cannot be part of such a committee. One of the other important queries by Justice Dixit to the petitioners was on the interpretation of translation of GO which was in Kannada. He opined that the term used in GO cannot be interpreted based on the translation of the same in the Constitution. Justice Dixit also responded to Senior Advocate Ravivarma Kumar’s arguments that CDC actions amounted to exercising police powers. He said prescribing it in educational institutions cannot be termed as police power, but parental power. He also asked the state whether a political character like the MLA be involved in the administration of an institution.
Another line of questions posed by Justice Dixit to the State was regarding freedom of conscience under Article 25 and how it was different from freedom to practice religion. Justice Dixit also had some thoughts on the kind of secularism practiced in India which is different from the American Constitution. India’s secularism is not a wall between church and government, but it oscillates between ‘Sarva Dharma Samabhava’ on one hand and ‘Dharma nirapekshata’ on the other. He also observed that the Indian Constitution has not been enacted based on Karl Marx’s statement that religion is the opium of the masses. Justice Dixit also argued that if the court rules that hijab is part of ERP of Islam, it does not mean all Muslim women should compulsorily wear them. For a large part of the hearing, Justice Khazi was silent. On the seventh day of the hearing, she asked Navadgi whether the ERP test would also apply to freedom of conscience. Her second query was posed to Senior Advocate Sajan Poovayya who was appearing on behalf of CDC of one of the colleges. She asked whether this was an all-girls institution or a co-ed school.
