Bengaluru: While adjourning the hearing of hijab matter, three judge bench of Karnataka High Court has asked the petitioner’s advocate to file an application regarding clarification of the interim order banning of hijab in school and colleges.

Advocate mentions that the interim order of the Court is only for colleges which have uniform. But despite that Muslim girls are being forced to remove hijab even in colleges which do not have uniform and many students have sent out from the colleges without permitting them to write final exams, he mentioned before the bench.

Senior Advocate Professor Ravivarma Kumar argued for some of the petitioners, stated that College Development Committee (CDC) has no jurisdiction to decide on uniform, the Karnataka Education Act does not given permission to CDC to decide about hijab. He further stated that CDC is an extra legal committee contrary to the scheme of the Act.

The sum and substance is there is no ban on hijab. The prescription is CDC shall prescribe the uniform. In colleges under Karnataka pre-university committee, the uniform prescribed by College Development Committee has to be followed, Mr. Kumar referred, while reading out government order dated February 6. The govt itself has said they have not decided on uniform but has constituted a high power committee to go into the question, the GO says.

Section 2(7) of Karnataka Education Act on definition of "competent authority". It has not been given any power to prescribe uniform, Mr. Kumar argued while referring to Karnataka Education Act.

While referring the objections filed by the state government, Mr. Kumar pointed out that “the government is yet to take a decision. It has constituted a high level committee which will examine the matter. As of now govt has not prescribed any uniform or prohibited wearing of hijab, Mr. Kumar argued. 

Earlier, Senior Advocate Devadatta Kamat, appearing for students of Kundapura Bhandarkar’s college, stated that wearing of hijab is innocuous right of the petitioners prescribe in article 25 of the Constitution.

The legislation relied upon by State should have intent to reform. They have relied on Education Act but that law does not show that it is a law which has been enacted to curb hijab or for some social reform. That law should show a specific intent, Mr. Kamat argued.

Wearing of hijab, Rudrakshimala is not a display of religious identity. It is a practice of faith. When I was in school and college, I used to wear a rudraksha on my neck. It was not for displaying religious identity. By wearing it, I felt a link with my creator, a certain degree of protection, he mentioned.

The essence of Article 25 is it protects any practice of faith but not mere display of religious identity or jingoism. As per the guidance of Supreme Court, if a religious practice is abhorrent then State on ground of public order, health or morality can stop it, Mr. Kamat stated.

The Kannada translation of Constitution and wherever public order is used, it is ‘Sarvajanika Suvyavasthe’, he informed the court. He refers to the Kannada term "Sarvajanika Suvyavasthe" mentioned in government order and the submission of the AG that it does not mean 'public order'.

Kamat refers to South African judgment of Antony v. Governing Body.

On the next aspect of other jurisdictions/ countries apart from Muslim countries which have gone into hijab and whether it is a right

The Court of South Africa said that display of religion and culture is not a parade of horrible but fragrance of diversity which will only enrich our country.

The South African Court further observed that this argument has no merit since the judgment applies only to bona fide religious and cultural practice and allowed the petitioner to wear nose ring.

Our secularism is not Turkey secularism. Our secularism is positive secularism where State plays an enabling role to exercise fundamental rights and religious freedoms of all communities. It recognises all religions as true, stated Mr. Kamat.

In Turkey no religious symbols can be displayed in public. That Hijab ban was upheld by court due to that. But their Constitution is completely different. Our Constitution recognises different faith, he added.

Assuming you have power to prescribe and enforce uniform, where is the power to expel students from school because they have not adhered to that uniform, The doctrine of proportionality will come in, he draw the attention of the bench.