Wearing a hijab is not an essential religious practice, the Karnataka state government told the high court on Friday. The state, represented by Advocate General Prabhuling Navadgi, also backed its February 5 government order banning the hijab and added that the same did not violate the students' constitutional rights.
The state's submission came on a batch of pleas filed in the Karnataka High Court challenging the hijab ban in educational institutions. Even as the high court is hearing issues pertaining to the hijab row, the state government on Thursday issued a circular widening its ambit of the hijab ban to include minority institutions as well.
When this issue was raised before the bench led by Chief Justice Ritu Raj Awasthi, the bench observed that it could not take any action unless there was an affidavit challenging the circular. The bench accepted Navadgi's contention that the government would look into complaints that the high court's February 10 order banning the hijab and the saffron scarf was being misused by institutions not covered by it.
The high court also declined a plea to suspend the live proceedings of its hearing on the grounds that it was "causing a lot of unrest among the students as observations are understood out of context".
Let people hear what the state has to say, the bench said.
Government order banning hijab does not violate constitutional rights
The state government stood by its February 5 order banning the hijab on the grounds that it was reasoned and did not violate any constitutional rights. The Advocate General, representing the state, submitted that his response to the challenge against the hijab ban was going to be threefold:
- The February 5 Government Order was in consonance with the Karnataka State Education Act;
- Hijab is not an essential religious practice of Islam;
- Right to wear a hijab cannot be claimed under Article 19(1)(a).
The state government added that the practice of wearing a hijab must pass the test of constitutional morality and individual dignity as laid down by the Supreme Court in the Sabarimala and Triple Talaq judgments.
"We are pained at the way the government has been berated in these proceedings and allegations of how we are dictated by some other reasons while discriminating against girls and women. With absolute humility we say, State believes in treating everyone equally," Advocate General Prabhuling Navadgi asserted.
Government order innocuous in nature, doesn't violate rights
The Advocate General argued that the February 5 government order (GO) was innocuous in nature and did not affect any rights. The state maintained that it was consciously staying away from the controversy and not directly interfering in the issue. It added that the College Development Committee (CDC) and the management committees had complete autonomy on the issue of uniforms in state-run and private institutions respectively.
"The draftsman (of the GO) has become enthusiastic and said public order...The question of proscribing or prescribing hijab does not arise," he added.
"So if the CDC permits students to wear hijab, you have no objection?" the bench led by Chief Justice Ritu Raj Awasthi asked Navadgi.
To which, he replied that the state had "revisionary powers". "If in future some student or authority has a grievance that it might result in something, we may or may not take a decision," Navadgi added.
"Wasn't the GO premature? On one hand, you are saying a High-Level Committee is to be constituted, then on the other hand you issue these GOs," the court asked.
"The government, considering exigencies, issued these orders under Section 133 (of Karnataka Education Act). These are unusual situations which came up," Navadgi replied.
Navadgi further submitted that the petitions deserved to be dismissed because none of the colleges have come before Court saying the GO was without authority. "It is the students who have come before the Court saying that it is without authority. The challenge should fail on that ground alone," Navadgi added.
The high court will continue hearing matters on Monday. The state will submit why it has taken the stand that wearing a hijab is not an essential religious practice.
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