9 Feb 2022 10:07 AM GMT
The Karnataka High Court has referred to a larger bench, the writ petitions filed by Muslim girl students challenging the action of a government college in denying her entry for wearing a hijab (headscarf).Justice Krishna S. Dixit noted that matter gives rise to certain constitutional questions of seminal importance qua personal law, which must be decided by a larger Bench. It directed...
The Karnataka High Court has referred to a larger bench, the writ petitions filed by Muslim girl students challenging the action of a government college in denying her entry for wearing a hijab (headscarf).
Justice Krishna S. Dixit noted that matter gives rise to certain constitutional questions of seminal importance qua personal law, which must be decided by a larger Bench. It directed the Registry to place the papers before the Chief Justice for consideration immediately, considering the urgency pleaded in the petitions.
"Having regard to the enormity of questions of importance which are debated, the court is of the considered opinion that the papers be put at the hand of the Chief Justice to decide if a larger bench can be constituted in the subject matter," the Judge observed in the order.
Though the petitioners sought for interim relief permitting students to attend the colleges wearing hijab while the reference is pending, the single bench has refused to grant any interim relief, stating the same will also be considered by the larger bench.
"Even interim prayers merit consideration at the hands of larger bench that may be constituted by the Chief Justice in his discretion and therefore the arguments advanced on interim prayers are reproduced here...It is open for the petitioners to seek interim relief after a decision is taken by CJ regarding the constitution of the larger bench."
Considering the urgency pleaded by the petitioners, Justice Dixit directed the Registry to place the records before the Chief Justice immediately.
The 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).
Today, at the outset the single Bench expressed its inclination to refer the matter to a larger bench.
"I feel this matter requires consideration of Larger bench. The wisdom emanating from neighboring High Court judgements needs to be treated," Justice Krishna said.
The Judge was referring to the decisions rendered by the High Courts of Kerala and Madras, that were brought to its attention yesterday.
The Kerala High Court had declared hijab as essential religious practice of Islam and had allowed two Muslim girl students to wear it while appearing for the CBSE All-India Pre-Medical Entrance Test (AIPMT) in 2016.
Similarly, the Madras High Court had observed that there is almost unanimity amongst Muslim scholars that purdah is not essential but covering of head by scarf is obligatory.
Counsels appearing for the petitioner submitted that while reference to a larger bench is a question to be decided by the Court, they seek an early adjudication of the matter.
Senior Advocate Sanjay Hegde, an alumna of the college in question appearing for the petitioner, argued that the question involved in this case is whether there is a power with the State to prescribe a uniform and has it been properly prescribed.
Significantly, it is the petitioner's case that State has no competence to issue a GO on dress code as per the Karnataka Education Rules and the same is thus, beyond the jurisdiction of the state. The state has denied the allegation.
The petitioners further prayed that until the larger bench is constituted, an interim arrangement should be made to ensure that children are not kept out of college.
"Lordship may say that all the questions be kept open, prima facie since the students were going to the colleges, keeping all questions open, let the students study for the next two months. Kindly make some arrangements for interim," Senior Advocate Devadatt Kamat urged.
"A teenage girl should not be forced to settle with her conscience for the sake of her education. Let them have the darshan of their teachers," Hegde insisted.
AG opposes interim relief
Advocate General PK Navadgi, appearing for the State, opposed the grant of interim, stating that petitions are not maintainable. He contended that the petition is misconceived inasmuch as it challenges the Government Order (dated February 5), whereas each institution has been given autonomy in prescribing uniforms. Further, such decision is appealable. "Therefore prima facie case is not made out," he said.
It was further contended that hijab does not form integral part of the religious practice. To buttress this argument, he submitted that even the Kerala High Court's judgment which upheld the right to wear hijab recognizes that there can be a different view.
"One question that would arise is to whether present assertion of right, wearing of hijab is essential religious practise. This issue has become a larger issue and everybody is looking upto the court for a decision," the AG submitted.
He also opposed the grant of interim relief, stating, "interim order at this stage will be amounting to allowing the petition".
Senior Advocate Sajan Povayya appearing for the concerned College Development Committee also stated that the questions raised in the writ petition are squarely covered by the Bench's roster. "Therefore lordships may after hearing parties render judgement. Reference to larger bench not necessary," he said.
He further pointed out that prescription of uniform has been in placed since one year. However, it is only now that a complaint has been raised. Thus, he opposed interim relief.
Case so far
When the matter was first heard yesterday, the Court had appealed to the students' community and the public at large to have faith in Constitution and maintain peace and tranquility, while the matter is sub-judice.
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.
About the plea
The petitioner, student of the Government-run Pre-University (PU) College for Girls in Udupi district, is aggrieved by the alleged illegal and discriminatory action taken by the PU College which has denied her entry into the college on the sole ground of wearing a hijab. She has approached the Court seeking a declaration that wearing a hijab (head scarf) is a Fundamental Right guaranteed under Article 14 and 25 of the Constitution of India and is an essential practise of Islam.
It was the stand of the college that petitioners and other similar placed students have violated the dress code of the college by merely wearing a hijab.
It is the case of the petitioner that the right of women to have the choice of dress based on religious injunctions is a fundamental right protected under Article 25 (1), when such prescription of dress is an essential part of the religion. The plea refers to verses from the Holy Quran and states that taking away the practice of wearing the hijab from women who profess the Islamic faith, results in a fundamental change in the character of Islamic religion.
Denial of Woman's Right to wear her Religious Attire is not proper; Kerala HC allows Muslim girls to wear Hijab in AIPMT Exams
Cannot Direct School To Allow Muslim Girls To Wear Headscarf & Full Sleeved Shirt With Uniform: Kerala HC
Right of women to have the choice of dress based on religious injunctions is a fundamental Right; Kerala HC allows Muslim Girls to wear Hijab for AIPMT [Read Judgment]
(Edited and compiled by Akshita Saxena).