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• Senior Advocate Devadatt Kamat continued making submissions for petitioner(s) & prayed that the interim order which restrained all the students regardless of their religion or faith from wearing saffron shawls (Bhagwa),scarfs, hijab, religious flags or the like within the classroom should not continue

• Kamat also told Court that India is a "positive secular country" & not a negative secular country like Turkey

• One of the petitioner's counsel was pulled up by Court for swearing in an affidavit without an application

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In the ongoing Hijab row case, a special Bench of Karnataka High Court headed by CJ Ritu Raj Awasthi and comprising of Justices Krishna Dixit and JM Khazi today pulled up a counsel for filing a sworn in affidavit in an application on behalf of the petitioner.

The court was hearing plea(s) by girl students challenging the alleged ban of wearing Hijab in government pre-university colleges in Udupi district. Yesterday, an application seeking deferral of the hearing in the matter was mentioned before the court. The application stated that in view of the election in the six states, political parties may use the facts of this case out of context and use them for political gain and polarising the public. On these grounds, the application along with a memorandum of facts (by the counsel) prayed for the deferral of hearing till 28th February.

At the conclusion of today’s hearing Ravivarma Kumar, Senior Advocate, urged the court to take this application up as the colleges were going to open tomorrow. The Advocate General Prabhuling Navadgi immediately pointed out that the counsel had filed his affidavit and the petitioners have not filed any affidavit along with the application to substantiate.

The counsel submitted that the petitioners could not file an affidavit as they were in Udupi.

The court remarked, “We will not allow a bad practice. Application should be filed along with the Affidavit. A lawyer cannot be permitted to swear in an affidavit on behalf of the petitioner it is contrary to Karnataka Civil Rules of Practice, 1967.”

The court rejected his affidavit on these grounds. It is to be noted that the counsel had also filed his affidavit in the matter trying to bring certain alleged facts, however the AG objected to it and the affidavit was not taken on record.

When the hearing commenced, Devadatt Kamat, Senior Advocate, resumed his arguments and submitted, that for the State to intervene in a religious practice, it should be abhorrent and it should be interfered with a legislation. He argued that, “The essence of Article 25 is that it protects the practice of faith but not a mere display of religious identity or jingoism.”

He further argued that to interfere with a religious practice, the legislature ought to have applied its mind and the application ought to have been displayed in the act itself and that the legislation has to  be demonstrated ex facie that it has to have an intent to reform. Kamat also referred to judgments of courts of South Africa, England and Canada to drive him the point.

Kamat argued that the essence of Article 25 is the innocent practice of faith, not a display of religious identity. He further agued that “State says somebody wears a headscarf, there will be issues cannot be the reason to stop them from wearing it.” Kamat also argued on the principle of Heckler’s veto which occurs when when a party's right is curtailed or restricted by the government in order to prevent a reacting party's behaviour.

He further argued on how India is a "positive secular country", which believes in all religions, unlike Turkey which is negative secular country. On the alleged segregation of Students in classrooms  based on their religious identities, Kamat argued that it is a destructive practice. Kamat while asking the court not to continue with its order restraining the students from wearing religious dresses to education institutions submitted that, “Article 25 has no concept of reasonable restriction. Lastly milords please look at the operative portion restraining the students. The sweep of this order is extremely broad. Kindly make some leeway , please permit us to carry out our faith.” Kamat concluded by submitting that, “This order suspends fundamental rights. Please dont continue this order.”

The court then proceeded to hear Ravivarma Kumar, Sr. Adv, appearing for one of the petitioners, who submitted that the impugned GO dated 5th February 2022 says that the students should wear the uniform prescribed by the government, however the government has not prescribed any uniform so far.

He submitted that “The government is yet to take a decision on uniform, it is constituting a high level committee. As of now the government has not prescribed any uniform, it has not prohibited wearing the Hijab.”

Due to paucity of time, the matter the court adjourned the matter and will continue hearing it tomorrow (16th February, 2022)

Case title: X Vs State of Karnataka