The Karnataka High Court commenced hearing a batch of petitions, filed by Muslim girls studying in government pre-university colleges in Udupi district, questioning the ban on wearing hijab (head scarf) in colleges.
Justice Krishna S. Dixit, before whom the petitions came up for hearing, at the outset requested the advocates, “Let us keep aside passions and emotions, and go by the laws, the reasons, and the Constitution.”
Advocate Mohammed Tahir requested that four petitioner students of Government PU College for Girls, Udupi, be temporarily allowed to attend classes by wearing the dupatta, which is a part of the uniform prescribed by the college, in the form of a head scarf for now, as only two months are left for the end of the current academic year, during the pendency of the petitions.
Advocate-General Prabhuling K. Navadgi said that the issue is now not confined to only four students, but a general question of law has arisen on the right to wear hijab in educational institutions.
Justice Dixit said that if no via media can be worked out, the court will have to decide the issue early as it is not a happy scene to see students marching on the roads every day. Pointing out to how the issue is being widely circulating in various media platforms, the judge said that he found hundreds of messages from unknown numbers in his WhatsApp on ruling by various courts.
The Court agreed to first hear a petition, filed by Aishat Shifa and Thairin Begum of Government PU College, Kundapur, as it has questioned the legality of the latest Government Order, issued on February 5, 2022, prescribing guidelines for a dress code for both government and private schools, and pre-university colleges in Karnataka in the light of the hijab controversy.
Senior Advocate Devadatta Kamat, appearing for the petitioners, has argued that the petitioners are not talking about wearing burqa or veil, but only a head scarf while contending that wearing of hijab is an ‘essential religious practice’ prescribed in the Holy Quran. Hence, the State Government has no regulatory power as wearing of hijab is protected under the right to freedom of religion in Article 25 of the Constitution.
Mr. Kamat also contended that the right to wear a dress is a facet of the fundamental right to speech and expression under Article 19(1)(a), and threshold of ‘public order’ should be extremely high to impose any restriction under Article 19(2).
If wearing of hijab is a ‘public order issue’, how is that Muslim girls wearing hijab outside is not a ‘public order issue’ but it becomes one when they enter college, Mr. Kamat contended.
It has also been contended that the GO of February 5 violates the right to privacy guaranteed under Article 21 of the Constitution, as interpreted by the apex court in Justice Puttaswamy’s case.
It has been argued by Mr. Kamat that Sections 7 and 113 of the Karnataka Education Act, 1983, under which the GO of February 5 was issued, have no reference to a dress code, and hence the government had no competence to interfere to lay down policy.
Mr. Kamat contended that the judgments of Kerala and Madras High Courts, cited in the GO of February 5, are not applicable in the present case as facts in those judgments are different.
He alleged that these students, who were earlier refused entry into the college since the last few days, were on February 7 allowed entry, but were segregated from other students and made to sit in a separate hall.
The A-G disputed the correctness of this allegation.
HC requests students and public to maintain peace
The High Court requested the student community and public at large to maintain peace and tranquility in Karnataka when the court is hearing the legal arguments on the ban on wearing hijab in colleges.
“This court has full faith in the wisdom and virtue of the public at large, and hopes that the same would be put to practice,” Justice Dixit said in his brief order after the A-G, at the end of the hearing, pointed out that there is a need for the court to restrain protests and demonstrations, which may lead to a law and order issue when the court is hearing the matter. The A-G cited an order issued by the apex court in the farm agitation issue.
Senior Advocate Devadatta Kamat broadly agreed with the suggestion made by the A-G and assured the court that the petitioners would cooperate in this regard, but asked whether it would be possible to restrain the right of those, who are not before the court, from resorting to protests.