Bengaluru: Senior Advocate Devadatt Kamat argued before the full bench of the High Court that wearing of headscarf or turban is being denied on the pretext of the government order. 

Students' right to education which is paramount and overarching principle is being put on the backburner, the state should facilitate an atmosphere of the right should be exercised”, Mr. Kamat argued.

Essential Religious Practice (ERP) is not a restriction on my fundamental right. ERP is a restriction on State's power to interfere with religious practice. The question which would fall first for consideration is - where is the restriction?, Mr. Kamat contended while placing a rejoinder.

Chief Justice Ritu Raj Awasthi headed the three-judge bench to resume the hearing of the hijab matter. Meanwhile, it has dismissed the petition filed by the All India Democratic Women’s Association (AIDWA), seeking assistance to the Muslim students in the matter. The bench dismissed the PIL on the grounds of its maintainability.

Education Act is not a measure of social welfare or reform for the purpose of 25(2). Article  25(1), the canopy, width and ambit of rights is not capable of being put in a straitjacket formula. It is my practice of faith to wear a headscarf which is restricted. If there is a restriction where is the law? And I say there is no law, he stated.

Senior advocate appearing for college management, Krishnakumr contended that the goal of government order is to regulate activity part of pursuing education secular activity and not to interfere with religious freedom per se. The regulation (GO) in question will have to be also understood in the light of the fact that it is not intended to achieve the goal of interference with religious rights, Mr. Krishnakumar argued citing the judgement of Bennet Coleman Vs Union of India on newsprint policy.

The purpose of the uniform is to bring quality to a common platform. The Act, therefore, consciously contains a provision of this nature and that is how the regulation question would also have to be considered, he contended.

The regulation sought to be challenged would have to be considered from the point of the objective it seeks to achieve. The objective is bringing about uniformity in the treatment of students in an educational institution, he argued.

Senior Advocate Kirti Singh appearing for All India Democratic Women’s Association (AIDWA) submitted that the petitioner association has members who are affected by this impugned order.

The entire picture has not been put before the court including a legal picture. However the court has dismissed the PIL filed by AIDWA on the ground that maintainability of the petition.

The bench observed that it has not satisfied with the maintainability of the petition. Aggrieved persons are represented by very competent lawyers.

Senior advocate appearing for students, Dar submitted that the Hijab is mandatory in Islam. It is the last commandment from Allah. It has come in the fourth Hijri. By that time Quran was almost complete. It came last. There are 4 kinds of coverings. One is burka, one is abaya, it covers everything. Then is ihram, and then hijab, he argued.

“He further argued that the first commandment is obligatory daily 5 prayers. Nobody can say no. It is another thing whether all Muslims do it or not. The second is Zakat, third is the rulings of inheritance which is defined in the Quran. Fourth is fasting in Ramadan which is compulsory, with a few exceptions. Hijab came during the fourth Hijri. The word hijab is not in Koran. Hijab refers to a partition. It is a screen between one individual from another. It is mandatory, even the wives of Prophet would wear it”, Mr. Dar submitted to the court.

In Islam, we have to cover the chest, it is mandatory. It is a question of life and death for us. We do not want to destroy anything secular. Muslim women will be identified by Burkha. Wearing it is not by compulsion. It is sacred to us. That time this practice was prevalent even among Christians, he argued.

It is not by way of fashion, the Quran has said that you have to cover your sisters and daughters with the scarf, it is mandatory for us, Mr. Dar argued before the bench.

Questioning the government order, Mr. Dar stated that “We are a democratic country. How will hijab create public order? When offering prayers, ladies have separate space. But during haj we do it together since it was exempted by Prophet”, he stated.

"We have a marginalized community as far as education is concerned because of our own fault. We live in harmony and in diversity. Please allow our girls to cover their heads. It won't cause prejudice to anybody", Senior Advocate Dar pleaded before the bench. 

If someone keeps desecrating the image of Lord Rama or any Hindu goddess then it is public order issue. If you desecrating the image of other religions, then it hurts feelings and it can be public order. But simple covering head, how it causes public order. It does not cause public order issues. It is not causing any immorality, he contended.