Two teachers from Government PU College in Udupi, the epicentre of the hijab row that started in December, appeared before a full bench of the high court to defend the state government’s stand on the batch of petitions challenging the dress code.
State advocate general Prabhuling K Navadgi iterated that there was no restriction on students wearing the hijab on campus. “This restriction is only inside the classroom, during class hours, and uniformly applicable to everyone. Nobody can wear anything beyond the stipulated uniform, irrespective of community and religion,” he told the bench, headed by Chief Justice Ritu Raj Awasthi.
The rule that students of educational institutions should be in uniform is a reasonable restriction enforced under the institutional discipline doctrine, Navadgi said. He pointed out that only students up to PU level were required to wear uniform.
“The preamble to the Karnataka Education Act provides for this with a view to maintain a secular perspective,” the AG said. “There is such a concept as institutional discipline. It could be in hospitals, schools or military establishments.”
Navadgi illustrated his point by mentioning that an individual’s right to grow a beard in the military stands negated on the ground that institutional discipline bars exhibition of individual choices.
Referring to the pro-hijab petitions citing freedom of speech and expression under Article 19(1)a of the Constitution, the AG said that could not negate Rule 11 of the Karnataka Educational Institutions (Classification, Regulation and Prescription of Curricula) Rules 1995 that places reasonable restrictions in the name of institutional discipline. He also argued that the “independent” assertion of freedom of expression under Article 19(1)(a) could not go together with the freedom of religion under Article 25 as they were “mutually destructive”.
According to him, under Article 19(1)(a), the right to wear the attire of one’s choice as an exercise of freedom of expression was contradictory because there could be people who do not wish to wear the same.
“Some women do not wish to wear it. Therefore, an element of option is there. If your Lordships were to declare tomorrow this as an essential religious practice, every community is to wear this tomorrow. The consequences are huge. But Article 19(1)(a) is a fundamental right in a civic sense. It is a cultural right. Once you say that you also give the option of the right not to wear it, in that case, it cannot be Article 25 wherein an element of compulsion is there,” the AG argued.
Justice Krishna S Dixit told the AG that if the court were to hold that wearing a mangalsutra was essential, it is not that all Hindu women should wear it. Navadgi responded that women had become obligated by way of religious sanction to wear a particular dress, and there could not be a judicial declaration in such matters.
“What is optional is not obligatory, what is not obligatory is not compulsory, what is not obligatory/compulsory is not essential,” the AG said, citing the verdict of the Supreme Court in the Sabarimala case.
Chief Justice Awasthi then asked what was the status of the Sabarimala case judgment, and whether it was under review. If so, the bench sought to know whether a judgment under review could be applied to other cases.
The AG replied that the Sabarimala review petition had been dismissed, while seven contentious points pertaining to the case were referred to a larger constitutional bench.
Navadgi also placed before the court the English translation of certain Quranic verses, relied upon by the state government to claim that hijab is not essential to Islam, opposing the petitioners’ contention that it is so. He told the court that the petitioners had quoted verses taken from the website Quran.com.
After the AG read out the verses, the Chief Justice asked him if the suras quoted by the petitioners had nothing on hijab. He replied in the affirmative.
Asserting that the state government was committed to upholding women’s right to dignity, Navadgi quoted Sahir Ludhinavi’s composition from Hamraaz, “Na muh chhupaake jio, aur no sar jhukaake jio”.
Denying what he said were “bald allegations of religious discrimination”, the AG said, “No community has been preferred to another community.”
Shalini Nayak and Chaya Shetty, lecturers in biology and physics at the Udupi PU college, argued that different public places are on a different footing. “It is for the state to ensure that schools/colleges follow order and discipline, and the outer limit is not breached.”
The bench disposed of a petition filed by the Karnataka State Minorities Educational Institutions Managements Federation in connection with the February 5 order on dress code after the AG submitted that the government was not interfering in any manner in unaided minority institutions.