Restriction only in classroom, not outside, Karnataka to SC on hijab row
It also emphasized that it has not touched any “religious aspect” in the hijab ban row.
Advocate General Prabhuling K. Navadgi, representing the Karnataka government, contended before a bench of Justices Hemant Gupta and Sudhanshu Dhulia that it has never happened in Karnataka that a group of students came to school in hijab and began banging the gates.
As the bench queried if it started in one school and then spread, Navadagi said yes.
“There was a possibility of a public order issue,” he said, and emphasised that restriction on hijab was only in the classroom and when it was asserted militantly that they want to wear hijab and retaliated by others, it became a concern.
He said that it has to be demonstrated that wearing of hijab is a right to expression and right to privacy is still evolving jurisprudence and can’t be exercised in all zones.
The AG said France has prohibited hijab and the women there have not become any less Islamic. He added that the state has not touched any religious aspect or religious issue. “Much hue and cry is made by saying that hijab is banned. Let me clarify, hijab is not banned and the state never intended,” he said.
Navadgi submitted assuming wearing of hijab is a religious practice ordained in Quran and every mundane activity connected with the religion can’t be an essential religious practice. He added that if it were to be accepted that whatever is said in the Quran to be essential, it will defeat the tests of essentiality.
Citing Article 51A(j) of the Constitution, the AG contended that one should rise above religious identity to become part of one group, and the right to wear a dress cannot be absolute.
He said the right to wear dress as part of expression can’t be readily given at the mere asking and it has to be established what is the expression they want to convey and to whom they want to convey. He said that “they say they wear hijab as Islam mandates. That is no expression.”
Navadagi said the state only wants to inculcate discipline in students by regulating uniforms and any restrictive effect on rights under Article 19 of the Constitution is “incidental” and it cannot be a ground to invalidate the law. He added that there is no restriction on wearing hijab either on school campus or school transport. “It is only in classroom,” he said.
The bench quizzed Navadagi, citing the government circular, whether wearing a headscarf goes against unity and equality, and cited one of the contentions of the petitioners that there should be no uniform – since it is pre-university and some do not have uniform.
The AG contended that the words used in circular were if there is no uniform prescribed, wear something which goes along with unity and equality and also has no impact on law and order.
He said the state has only said educational institutions can prescribe uniforms for students, something which is “religion neutral”.
The top court will continue to hear arguments on Thursday on petitions challenging the Karnataka High Court verdict refusing to lift the ban on hijab in educational institutions of the state.
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