The school uniforms prescribed by the Kendriya Vidyalayas – which are run by the Union government – where Muslim girls are given an option to wear headscarves have been cited by advocates for Muslim girls from a Udupi college to question a ban imposed on headscarves or hijabs in some pre-university colleges run by the Karnataka government.
A senior advocate appearing for girls from a Government Pre-University College in Udupi presented a memo to the Karnataka High Court on Monday to indicate that freedom of religion was being practised in Kendriya Vidyalayas in the country through a provision allowing Muslim girls to wear headscarves.
“As far as Muslim girls are concerned, they are permitted to wear scarves matching with the bottom wear with red hem on corners by the Kendriya Vidyalayas,” senior advocate Devadatt Kamath told a full bench of the Karnataka High Court on Monday during a hearing of a batch of petitions filed by Muslim girls who have been barred from classes in pre-university colleges in Udupi for wearing headscarves or hijabs in alleged violation of uniform norms.
“In fact, the Kendriya Vidyalayas even today – they permit by notification… Even at the national level this has been the tradition. Governments have permitted headscarves to be worn,” the senior advocate said while placing a memo before the high court to consider the fact of headscarves being allowed by the Union ministry of education. “Headscarves for Muslim girls and headgear allowance for Sikhs. This is in line with Article 25 of the Constitution,” Kamath argued.
The advocate told the court the Muslim girls were wearing Hijabs or headgear to their classes until recently and that a Karnataka government order of February 5, 2022 legitimized a ban on Hijabs.
One of the main contentions of the advocate for the Muslim girls from Udupi was that the state government – which has the responsibility of maintaining public order – had outsourced the responsibility of deciding on the fundamental right to freedom of religion (which is subject to public order) to a College Development Council (CDC) through the February 5, 2022 order.
“The government declaration that wearing a headscarf is not protected under Article 25 is totally erroneous. As far as delegation to a CDC to decide whether to permit students to wear headscarves or not is totally illegal. As lordships are aware under Article 25 – the only restrictions which come to the aid of the state in restricting freedom of religion is public order,” Kamath argued.
“Public order is a state responsibility, it is a responsibility of the executive. The question that will arise for consideration is whether a CDC – consisting of an MLA and subordinates – will decide whether exercising this fundamental freedom under Article 25 is permissible or not. An extra statutory authority has been made the guardian of our constitutional freedom which is totally impermissible,” he said.
The advocate for the affected girls said that the use of headscarves does not have to be an essential religious practice for it to be considered for protection under the right to freedom of religion.
“If there is a practice that a believer thinks is part of his faith and that practice by itself is innocuous – it is not something, my lord, which by itself violates public order. By itself it does not infringe on anyone’s freedom. In this context the question of essential religious practice will not arise. It is simply a facet of belief,” the senior advocate argued. “Till the GO (February 5) they have been going with hijabs. It is an innocuous practice. State should facilitate freedom of religion not obstruct,” he argued.
The case was referred for further hearing on Tuesday. Earlier when the hearing began, Chief Justice of Karnataka High Court Ritu Raj Awasthi called for responsible reporting by the media on the issue.
“My earnest request to the media is to be more responsible. We all have to behave like more responsible citizens. We are not saying anything to the media, we are not on that issue. Our request is that the media must see its responsibility as the fourth pillar of democracy,” the chief justice said.