If Turban Wearing People Can Be In Army, Why Not Hijab Wearing Girls In Classes : Ravivarma Kumar To Karnataka High Court

Mustafa Plumber

16 Feb 2022 12:46 PM GMT

  • If Turban Wearing People Can Be In Army, Why Not Hijab Wearing Girls In Classes : Ravivarma Kumar To Karnataka High Court

    A Full Bench of the Karnataka High Court today continued hearing arguments on the petitions filed by Muslim girl students, who challenged the action of a government college in denying their entry for wearing a hijab (headscarf).Prof Ravivarma Kumar, Senior Advocate, appearing on behalf of the petitioners today argued that the state is discriminating against Muslim girls, solely on the basis...

    A Full Bench of the Karnataka High Court today continued hearing arguments on the petitions filed by Muslim girl students, who challenged the action of a government college in denying their entry for wearing a hijab (headscarf).

    Prof Ravivarma Kumar, Senior Advocate, appearing on behalf of the petitioners today argued that the state is discriminating against Muslim girls, solely on the basis of their religion. He highlighted that the Government Order dated February 5 targets wearing of hijab whereas other religious symbols are not taken into account. This leads to hostile discrimination violating Article 15 of the Constitution.

    The Bench comprising Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi also heard Senior Advocate Yusuf Muchhala for the petitioners.

    During the course of hearing, it also expressed disinclination to hear the intervenors in the matter. "Petitioners are being represented by senior advocates. Where is the question of considering the interventions? These applications will waste the time of the court," the Chief Justice said. He clarified that the intervenors may be heard later, if the bench feels the requirement of further assistance.

    Wearing Hijab not prohibited under Education Act or Rules: Kumar

    The first limb of submissions made by Senior Advocate Prof.Ravivarma Kumar was that there is no mandatory uniform prescribed for Pre-University Colleges by the Karnataka Education Act and the Rules made thereunder.

    He pointed out that no uniform is prescribed for govt colleges under the guidelines issued by PU Education Department, for the academic year 2021-22. "Neither the provisions under the act nor rules prescribe any uniform. Neither under act nor rules there is a prohibition on wearing HIjab."

    He referred to the Guidelines prescribed by the PU Education Department for the academic year 2021-22 which said that uniform is not mandatory for students studying in PU colleges.  He also pointed out that the said guidelines expressly forbade College authorities from prescribing uniforms and warned that Principals will face disciplinary action if they imposed uniforms.

    The bench asked if this guideline of the Department has any force of law. Kumar replied that he is not seeking to enforce the said guideline and his only endeavour was to show it to the bench that there was no uniform prescribed in PU Colleges for the current academic year.

    At this juncture, Justice Dixit asked if merely because something is not prohibited in the Rules explicitly, does it mean that it is permitted.

    "If that view is taken, somebody may say there is no license required to carry arms in the classroom as there is no prohibition. I am logically analysing what your proposition can take us to...There is no prohibition to carry kirpan if it is not prescribed. However, the power to prescribe under Rule 9 is there. That needs to be independently argued."

    Kumar responded,

    "I am not expanding the proposition I have made. I am only saying there is no prohibition against Hijab. The question that comes then is under what authority or rules I have been kept out of the class."

    College Development Committee not empowered to stipulate Uniforms: Kumar 

    Yesterday, Kumar had emphasized that the Education Act is a complete code in itself, and the so-called College Development Committee does not find mention under the statute. "It is an extra-legal authority which is now endowed with the power to prescribe the uniform, contrary to the scheme of the act and letter of the rules," he had said.

    Today, he submitted that the Legislature has expressly authorized the authorities coming under the Education Act. Section 143 thereof deals with delegation to authorities under the Act. He contended that since CDC is not an authority under the Act, much less a subordinate authority, and the delegation cannot be made to it.

    Kumar mentioned that CDCs have been constituted by a circular issued in 2014. "This is a circular, not an order, issued by the under secretary, not even an order in the name of the Govt...The circular says CDC is to be constituted for the purpose to utilise the grants, as well as maintaining education standards. This CDC is not for students welfare. It is only for academic standards."

    He stressed that prescribing uniforms was not a function entrusted with CDC as they have to deal with academic standards.

    At this juncture, the Bench enquired whether uniform cannot be prescribed to maintain academic standards. To this, Kumar responded,

    "With great respect, academic standards have no relation with uniform. Academic standards deal with student-teacher ratio, syllabus etc. CDC cannot have police powers over the students."

    Composition of CDCs problematic: Kumar

    Additionally, Kumar argued that the CDCs consist of MLAs, who cannot be treated as subordinate to the Government.

    "In our constitution, it is the representative of peoples who hold the government accountable. The hallmark of our democracy is holding the government accountable by elected representatives. How can they be regarded as subordinate to government?"

    Kumar added, "Now under the CDC, MLAs take over the administration. MLA cannot be entrusted with any administrative power. That is unknown in our Constitution, it violates the separation of powers."

    He pointed out that in the year 2015, the Government had constituted a committee under local MLAs, for distributing houses under the Free housing scheme. That order was challenged on the ground that MLAs can't be given administrative powers, and the GO came to be stayed by the Court.

    "Everything is wrong to give MLAs administrative powers. That will be a death knell to our democracy. MLAs are to be fearless in the floor of the house. They can't be made subordinate to the Govt. Kindly take judicial note of the fact that an MLA will be representing a political party or a political ideology.
    Sir, can you entrust the welfare of the students to a political party or a political ideology With all humility, I say the constitution of a committee of this nature gives a death blow to our democracy and separation of powers."
    Change in uniform must be notified in advance: Kumar

    Kumar pointed out that the Education Rules categorically provide that any change in the uniform should be notified by the educational institutions by giving one-year advance notice to the parents. He referred to Rule 11 and 12 of the 1995 Rules in this regard.

    "So, if there was to be a ban on hijab, the notice ought to have been given one year in advance," he said.

    Yesterday, Kumar had pointed out that the students were prevented from entering the school from December 28. However, the State has been banking upon a decision taken on December 31. He further stated that the State has spoken about "code of conduct of institution"; whereas there is no code of conduct.

    "Kindly mark this Govt is yet to take a decision on the uniform dress code. It is to constitute a high-level committee. As of now Govt has not prescribed any uniform or prohibited the wearing of hijab."

    Discrimination on the basis of religion & Violation of Article 15: Kumar
    Kumar argued that the impugned GO does not take into consideration any other religious symbol. "Why only hijab? Is it not because of their religion? The discrimination against Muslim girls is based purely on their religion, and hence a hostile discrimination, which is violative of Article 15 of the Constitution," he submitted.
    He referred to a research paper based on a comprehensive survey done on religious clothes and symbols. "Many Indians display the religion through attire. Half of Hindus and Muslims and majority of Christians say they generally wear a religious pendant. Most Sikh men keep hair long," he said.

    Justice Dixit then inquired about the authority and authenticity of the paper.

    However, Kumar responded that he is not insisting on accepting this. "I am only showing the vast diversity of religious symbols in all sections of the society. Why is Govt picking on hijab alone and making this hostile discrimination? Bangles are worn? Are they not religious symbols? Why are you picking on these poor Muslim girls?"

    He continued, "A bindi wearing girl is not sent out ,a bangle wearing girl is not. A Christian wearing cross is not touched. Why only these girls? This is violation of Article 15 of the Constitution."

    The Bench then pointed out that Article 15 may not have an application here insofar as wearing of the headdress of all religions is banned.

    However, Kumar argued that the GO was only targeting hijabs which is worn by only Muslims. The wearing of ghoongats and turbans is permitted.

    At this point, Justice Dixit asked : "Even if a person belonging to another community, a lady belonging to another community, suffers from acacia, and to minimize the ugliness, she wears the headgear and comes to the school. She will not be permitted".

    Kumar replied that such a girl can seek for relaxation which will be considered on the basis of humanitarian grounds. But in the case of hijab wearing girls, religious prejudice was at play.He added that the petitioners were denied entry to the college, without even giving an opportunity to present their case.\

    "We are not permitted, we are not heard but punished straight away. Can it be more draconian? Can they be called teachers for shutting us out? Here it is full of prejudice because of the religion. No notice, straight away sent out of the classroom, by persons without authority under the Act or rules."

    Goal of Education to promote Plurality: Kumar

    Kumar further argued that the goal of education is to promote "plurality", not to promote uniformity or homogeneity. "Classroom should be a place for recognition and reflection of diversity in society," he said.

    Reliance was placed on the Supreme Court's judgments in NALSA v. Union of India (on transgender rights) and Navtej Singh Johar v. Union of India (which struck down Section 377 IPC).

    Kumar further cited the case of Rosamma AV v. University Of Calicut, to emphasize that unity in diversity should be the motto and heterogeneity should be maintained.

    He stated that the Government of India had itself submitted before the Apex Court in Society of Unaided Schools v. Union of India, that 'Heterogeneity in classroom should be maintained. This is the motto of RTE Act.'

    "My submission is that if people wearing turban can be in the Army, why not a person sporting a religious symbol be allowed to attend classes...judicial note is to be taken that Muslim girls are least represented in classrooms. If they are shut out on this pretext it will be very draconian."

    Impugned GO suffers from manifest arbitrariness: Sr Adv Yusuf Muchhala

    Muchhala argued that the impugned GO, preventing Muslim girls from wearing headscarves, suffers from manifest arbitrariness. He referred to the principle of manifest arbitrariness used by the Supreme Court to strike down triple talaq in the Shayra Bano case.

    "They are only putting one apron over their head. When we say uniform, we cannot strictly confine to dress code. What was the practice adopted at school has to be seen. It has been changed without notice. Fairness requires notice. Fairness requires being heard."

    On the aspect of right to freedom of religion, Muchhala argued that it is not necessary that a practice should be an 'essential religious practice' for attracting Article 25(1). 

    "When the right is claimed under Article 25(1) and 19(1)(a) of the Constitution, what matters is the entertainment of a conscientious belief by individual. When right is claimed as a matter of conscience, it is not necessary to delve into the question whether it is an integral part of religion."

    He added,

    "The question regarding integral part of religion arises when the right is claimed by a denomination under Article 26 and not when an individual is claiming freedom of conscience under Article 25. Conscience is a very wide term. There are people who do not believe in God but believe in conscience. There are some who believe in the universality of all religions."

    Muslim girls can't be made to choose between religion and education: Muchhala

    Muchhala further argued that Muslim girls, who conscientiously believe that they should wear headscarf, should not be put to a Hobson's choice regarding education and faith.

    "The object they have launched is opposed to the fundamental duty of the citizens as well, as it goes against the promotion of communal harmony. The purpose of the Education Act is to promote harmony and not to create dissent among students. Why govt should come out with such impugned legislation? Are we promoting common brotherhood with this?"

    He added that assuming the State wants to implement a universal uniform, it should consult persons whose rights are affected. "What is the constitutional right that is infringed, Article 25, my right to conscience and my right to have an education. Thus the action is totally disproportionate."

    Case so far

    The Petitioners are students of Govt PU college. They claim that they were wearing head scarf, as part of their religious and cultural practice, over their uniform. However, the teachers and principal of the Respondent-college insisted that they remove their heads scarf.
    It is alleged that they are made to stand out of the class and this 'discrimination' is continuing since December 2021. They claim that a representation was made to the District Education Officer however, on January 1, the Principal called a meeting of the College Development Committee, which declared that petitioners should not wear headscarf. Following this, the petitioners were not allowed to attend classes and made to sit outside, which led to protests.
    An important question before the Court in this case is whether wearing of hijab is part of essential religious practise of Islam and whether State interference in such matters is warranted. The court is also called to consider whether wearing of hijab partakes the character of right to expression under Article 19(1)(a) of the Constitution and whether restriction can be levied only under Article 19(2).

    It is the petitioner's case that the right to wear hijab is an essential religious practice under Islam, and the State is not empowered to interfere with such rights under Article 14,19 and 25 of the Constitution.

    Hijab Ban : How Can Girls Going To School Wearing Head Scarf Be Public Order Issue? Petitioners Argue In Karnataka High Court

    Meanwhile, the State has claimed that it's aim is not to interfere with the religious beliefs of any community but, is only concerned to maintain uniformity, discipline and public order in educational institutions.

    "The feeling of oneness, fraternity and brotherhood shall be promoted within an institution. In educational institutions, students should not be allowed to wear identifiable religious symbols or dress code catering to their religious beliefs and faith. Allowing this practice would lead to a student acquiring a distinctive, identifiable feature which is not conducive for the development of the child and academic environment," it submitted in a written reply.

    The matter was first listed before a single bench of Justice Krishna S. Dixit, which referred the petitions to larger bench observing that "questions of seminal importance" are involved.

    On Friday, the Full Bench after hearing both sides passed an interim order restraining the students from wearing any sort of religious clothes in classrooms, regardless of their faith, till disposal of the matter.

    Yesterday, the Court rejected an affidavit which alleged that the interim order was being misused by authorities to stop hijab-wearing students even in institutions with no prescribed uniform.

    Earlier, Senior Advocate Devadatt Kamat appearing for the petitioners argued that wearing Hijab is an essential religious practice under Islam, and suspension of the same, even for a few hours during school, undermines the community's faith and violates their fundamental rights under Article 19 and 25 of the Constitution.

    Kamat heavily relied on a judgment of the Constitutional Court of South Africa, in KwaZulu-Natal and Others v Pillay, which upheld the right of a Hindu girl from South India to wear a nose ring to school.

    Kamat also underscored that the declaration made by the State government that wearing of headscarf is not protected by Article 25 of the Constitution was "totally erroneous'. It was also submitted that the conduct of the State government in delegating to the College Development Committee (CDC) to decide whether to allow headscarfs or not is 'totally illegal'.
    (Edited and compiled by Akshita Saxena)

    Live Updates of the hearing available here.

    Live Stream of the hearing available here :

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