Hijab is not an essential religious practice in Islam, claimed Karnataka government before the High Court on Friday, and that preventing it does not violate the constitutional guarantee of religious freedom.
“We have taken a stand that wearing the hijab is not an essential religious part of Islam,” Prabhuling Navadgi, state’s advocate general, told the court of Chief Justice Ritu Raj Awasthi, Justice JM Khazi and Justice Krishna M Dixit.
He further submitted that the practise of wearing hijab must pass the test of ‘Constitutional morality’ and individual dignity as expounded by the Supreme Court in the case of Indian Young Lawyers Association v. State of Kerala (Sabarimala judgment) and Shayara Bano v. Union of India (Triple Talaq judgment).
The arguments will continue on Monday.
The top state government lawyer said that there was nothing unlawful about a February 5 order which banned clothes “which disturb equality, integrity and public order” amid spiralling protests and counter-protests over a ban on hijabs in many schools and colleges in the state.
“There is no issue of hijab in the government order. The government order is innocuous in nature. It does not affect the petitioners’ rights,” he said, adding that colleges can decide if they want to allow the hijab in the classroom.
“Conscious stand of the state is that we do not want to intervene in religious matter. We could have said the hijab was against secularism and order and could have said it is not permissible. We have not. It is a stated stand of the state we did not want to intervene,” he said.
However, he admitted that the portion prescribing clothes “in consonance with unity and equality” could have been worded better.
“Here the draftsman went a bit enthusiastic. What was meant was, in case no uniform is prescribed, please wear decent clothes. I agree it could have been worded better,” he said.
The Advocate General rejected the charge of some Muslim students, who had challenged the Karnataka government’s order on February 5, saying that it violated Article 25 of the Constitution.
Article 25 gives freedom of conscience and free profession, practice and propagation of religion to the citizens of India.
The government order also does not violate Article 19(1)(a) of the Constitution which guarantees to all its citizens the right to freedom of speech and expression, Navadgi argued.
The hijab controversy has been playing out in the Karnataka High Court since last week following weeks of escalating tension over orders banning the hijab in classrooms that started spreading in the state since late December.
The High Court, in its interim order pending consideration of all petitions related to the hijab row, last week restrained all the students from wearing saffron shawls, scarves, hijab and any religious flag within the classroom.
