Karnataka Chief Secretary P Ravi Kumar will convene a meeting by Tuesday morning with relevant authorities to discuss issues pertaining to the misuse of the Karnataka High Court's interim order banning the hijab and saffron shawls (bhagwa) from educational institutions where a uniform has been prescribed, said the state Advocate General Prabhuling Navadgi.
The AG told the high court that the state is sensitive to the excesses by the authorities and the principal secretary of the education department has assured that the issue will be looked into. Media reports suggested that educational institutions across the state were forcing students and teachers alike to remove their hijab or burkas before entering the campus. This, the petitioners alleged, was a misuse of the high court's February 10 order.
Navadgi's acknowledgment and assurance on resolving the misuse of the hijab ban are significant considering the continued protests in the state. Pockets of violence broke out in the state after the murder of Harsha, a 23-year-old Bajrang Dal activist, on Sunday night. Amid simmering tensions in the Shivamogga district, the state government has deployed more than 200 police officials to maintain peace and order.
Also Read: Wearing A Hijab Is Not Essential Religious Practice: Karnataka Govt to HC
Does the state have a problem if authorities permit the hijab on Campus? HC to State
The high court on its seventh day of the hearing asked the state to clarify its stand on the February 5 government order which banned the hijab in educational institutions.
Referring to the state's submission made on Friday, Chief Justice Ritu Raj Awasthi said, "You have argued that GO is innocuous and does not ban the hijab and you have left it to College Development Committee (CDC) to prescribe uniform which shall be adhered to."
"What is its import? What is your stand? Can hijab be permitted in institutions? If institutions permit, then you don't have any objection?," CJ Awasthi asked Advocate General Prabhuling Navadgi. The AG replied that the state would take a decision as and when the situation arose.
He stressed that the government would not interfere and that the educational institutions were given complete autonomy to take a call.
However, the CJ Awasthi pressed the point and said the state had to take a stand. "It was argued by them (Muslim students) to permit hijab of same colour as the uniform. They have also argued that dupatta which is part of the uniform be permitted to be worn above their heads? So can that be permitted? the Chief Justice asked.
Advocate General however stressed that "anything which introduces religious aspect should not be there". Navadgi reiterated the state's stand that the government has not prescribed anything. "But as a matter of principle, the answer is in preamble of Karnataka Education Act which is to foster secular environment," he added.
The court then opined, that if the final decision lay with the College Development Committee (CDC) then how would they be regulated, and could the court enforce its orders on them since they were not statutory bodies.
Also Read: Educational Institutions No Place To Profess Religion: Karnataka Govt to HC
Wearing a hijab is not an essential religious practice: Karnataka to HC
Continuing his arguments, Advocate General Prabhuling Navadgi, submitted that according to an independent examination done by the state, wearing a hijab is not an essential religious practice.
Navadgi submitted that the petitioners have not placed any material whatsoever to substantiate their claim for a declaration that wearing of hijab is an essential religious practice.
Navadgi relied on the Supreme Court's Sabarimala and triple Talaq verdict to outline what constituted an essential religious practice. The advocate General also referred to the apex court's observations in the 1993 Ismail Faruqui verdict to buttress this point.
The advocate general referred to Supreme Court judge DY Chandrachud's opinion in the Sabarimala verdict where he said that constitutional courts assumed a central role in such matters and ultimately it was upto them to decide whether a religious practice sought to be enforced under Article 25 (Right to religion) can be enforced or not.
With respect to the present case, Navadgi said there are four principles that need to be applied to prove that wearing a hijab is an essential religious practice:
- The practice should be fundamental to that religion;
- If that practice is not observed, it would result in change of the religion itself;
- The practice must precede the birth of the religion itself. The foundation of religion must be based on that or must be simultaneously there along with the birth of religion. It must be co-extensive with that religion.
- Binding nature. If cannot be optional. It has to be compulsive so that if one disobeys, he/she cease to be part of that religion.
On Friday, Navadgi had backed the state's February 5 government order banning the hijab in educational institutions on the grounds that they were well-reasoned and did not violate any constitutional rights. Navadgi had stated that the GO was "innocuous" though the draftsman (of the GO) had become "enthusiastic and said public order" (to justify the hijab ban). "The question of proscribing or prescribing hijab does not arise," Navadgi had said.
Also Read: Right To Religion Not Absolute: Karnataka High Court On Hijab Row