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A Single Judge bench consisting of Justice Krishna Dixit today began hearing writ petitions filed by students of Government PU college, seeking declaration that they have a fundamental right to wear Hijab to college.

Prior to the beginning of the hearing, Abhishek Janardhan, counsel for one the petitioners sought for a short accommodation on the ground that the matter maybe heard with other writ petitions which are being filed for similar reliefs. Advocate General, Prabhuling Navadgi objected to this saying,

“We have filed our reply to this, the State is ready and keen to argue the matter.”

The court accordingly directed that the matter be called as per the list.

Devdatt Kamat, Senior Advocate, mentioned that a writ petition had been filed challenging the Government Order  (GO) of State of Karnataka dated 5th February  which said that “Colleges that are under the dept of Pre-University, state government to follow the dress which was decided by the college's development board (CDC). If there is no such dress code, students can wear the dress which will not affect equality, integrity and law and order.”  The court directed that this matter be taken up first.

When the hearing commenced, Justice Dixit said,
“We will go by reason, by law, not by passion or emotions. We will go by what Constitution says. Constitution is the Bhagavad Gita for me.”

Justice Dixit then began hearing the submissions of Kamat challenging the GO passed by State on 5th February.

Kamat submitted that this entire GO is hinged on 3 decisions of some other High Courts.  He submitted that the State says as per these decisions there is no fundamental right to wear Hijab. Kamat argued that his first submission was wearing a head scarf is an essential part of Islamic religion as it is prescribed in Holy Quran. He submitted that the subset is that all the 3 decisions mentioned in the GO do not deal with this issue at all saying  “These decisions are totally irrelevant.”

Kamat submitted that tight to wear a dress is a facet 19 (1)(A) and that unless the State justifies this decision was made in order to maintain public order, it cannot add such restrictions. He submitted that restriction can only be in terms of 19 (6) of the constitution as per the Supreme Court’s judgment in National Legal Services Authority Vs Union of India.

Kamat argued that the State has no regulatory power under Sections 7 and 13 of the Karnataka Education Act, 1983, to regulate or comment on aspects such as wearing Hijab to a place of education.

To substantiate his argument that wearing Hijab is an essential legal practice, Kamat, referred to verses 24.31 and 24.33 of the Holy Quran. He further referred to a judgments of Kerala High Court in a case titled Amna Bit Basheer Vs CBSE & Nadha Raheem Vs CBSE to state that when there is a conflict between Freedoms guaranteed and what the State thinks, it is for the courts to resolve the controversy.  He submitted that State cannot sit in judgment over what is an essential facet of religion.  Justice Dixit at this point interjected and said “Its not that State cannot decide what is essential or not. We have not adopted separation of powers in strict sense. While State evolves a policy it will make assumptive conclusions, it is for the citizen to challenge.”

He further referred to the judgments to submit that as a democracy, no religion can hold the State’s function to ransom and that If it is an activity which falls in the State domain, it cannot be debarred. He further submitted that what constitutes a religious practice can can be construed only from religious considerations and not on secular notions. Kamat further submitted that he will distinguish the judgment of Kerala High Court which it cited in the GO, the court informed Kamat that they will hear the same after lunch (case ongoing, to recommence at 3 pm)

 

Case title: Resham Vs State of Karnataka & Ors