Published: 22nd February 2022
#HijabRow: Restriction on hijab only in classroom during class hours, says AG on Day 8 of hearing
AG also said that hijab should be a choice and the petitioners are aiming to make it compulsory
Advocate General, Prabhuling Navadgi, representing the State of Karnataka, told the High Court, on February 22, that the reasonable restriction imposed on wearing the hijab is prescribed in Rule 11 of the Karnataka Educational Insitituonal Classification Regulation and Prescription of Curricula Rule 1995. "I must point out that there is no restriction on wearing the hijab in the institutions. It applies only inside the classroom and only during class hours. And it is uniformly applicable to everyone. Nobody can wear anything apart from their uniforms, irrespective of their community, caste or religion," said the AG. The Bench stressed that they wish to wrap up the case by the end of this week, and wanted to avoid it spilling over to next week.
He expanded on his observations as to what counts as fundamental to the religion and what can be considered an essential religious practice (ERP) in the case against the restriction on hijab inside educational institutions. On day eight of the hearing in front of the full bench of the Karnataka High Court, consisting of Chief Justice Ritu Raj Awasthi, Justice KS Dixit and Justice JM Khazi, the advocate said that the petitioners have laid claim to the Right to Freedom of Expression to wear the hijab, which is "mutually destructive" to their argument claiming protection under Article 25 (A). He explained that what is optional cannot be obligatory and, therefore, cannot be fundamental to the religion. "Claiming Article 19(1)(a) right is destructive to the claim of Article 25 because the right granted under Article 25 is for compulsory practice. When you assert Article 19(1)(a), it refers to choice," he said.
The advocate went on to say that a right claimed under Article 19 (1)(a) will be subject to reasonable restrictions under Article 19(2). "There is no restriction in wearing the hijab in our country, subject to institutional discipline, whether it be schools, hospitals, or the military. The 19 (2) could have been called into question by the petitioners, but they haven't been," said the AG.
He also referred to his argument from yesterday where he said that declaring the hijab as a religious sanction will make it binding on all Muslim women. "As soon as a religious sanction is imposed, a woman becomes obligated to wear that kind of dress. If the court says that the hijab is compulsory and a woman decided not to wear it, it may amount to lowering her dignity. Every woman should have the choice to wear what she wants and what she doesn't want. There cannot be a sanction from a court. Of course, there has to be institutional discipline, that is a different argument," he said.
The court also heard submissions from Senior Advocate R Venkataramani who appeared on behalf of the teachers and said that an educational institution is different from other public places, and there must be great emphasis on enforcing discipline and ensuring neutrality in ensuring this discipline in the classroom. Senior Advocate S Naganand, who appeared for the Udipi PU College in question, the principal of the college and a lecturer from the institution tried to define the "fine line" between religion and culture. He questioned which category the hijab fell into and concluded that it was not an Essential Religious Practice.
The court will continue to hear his arguments tomorrow at 2:30 pm. Additionally, the court will also hear fresh applications filed for a clarification of its interim order forbidding students of schools and PU Colleges from wearing religious items of clothing when their institution has a prescribed uniform, in the case of degree and private PU colleges. The Bench also disposed of a petition that asked whether the GO applied to unaided private institutions when the AG said that it was not the case.