25 Feb 2022 10:53 AM GMT
A Full Bench of the Karnataka High Court today reserved its judgment in the petitions filed by Muslim girl students, challenging the action of a government PU college in denying their entry for wearing a hijab (headscarf). Hearing before the Full Bench comprising Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi was conducted for 11 days. It may be noted that...
A Full Bench of the Karnataka High Court today reserved its judgment in the petitions filed by Muslim girl students, challenging the action of a government PU college in denying their entry for wearing a hijab (headscarf).
Hearing before the Full Bench comprising Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi was conducted for 11 days. It may be noted that the Court's interim order, restraining the students from wearing any sort of religious clothes in classrooms, regardless of their faith, is subsisting as of date.
The parties and intervenors have been granted liberty to file their written submissions.
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).
The petitioners have also challenged a GO dated February 5, conferring power on College Development Committees to prescribe uniforms.
It may be recalled that the Petitioners had contended that there is no provision under the Education Act which contemplates a CDC. The State had then relied on the 'Residuary powers' under the Act, to justify its actions.
Today, the Bench speaking though Justice Dixit said that it is not satisfied with the AG's statement that the circular delegating power to CDC can be traced from the removal of difficulties clause.
As far as State government is concerned, it has claimed that it's aim is not to interfere with the religious beliefs of any community but, is only concerned to maintain a sense of secularism, uniformity, discipline and public order in educational institutions.
The State also said that wearing hijab does not stand the test of constitutional morality and individual dignity, laid down by the Supreme Court in Young Lawyers Association v. State of Kerala (Sabarimala judgment).
Further details below.
What transpired in Court today?
During the course of hearing today, the Bench heard rebuttal arguments for petitioners by Senior Advocates Yusuf Muchhala and Ravivarma Kumar and Advocate Mohammad Tahir. It also heard Dr. Vinod Kulkarni, party in person, supporting hijab.
Further, it dismissed a PIL seeking to restrain media houses from chasing hijab clad students and teachers while proceeding to their schools & colleges and from video-graphing and photographing of children and teachers near to their schools while they were removing their hijabs and burqas.
Wearing hijab bonafide practice of conscience: Mucchala
It may be recalled that the Respondents had raised the issue of 'constitutional morality' and had contended that declaring hijab as an essential religious practice will amount to lowering the dignity of women who do not wear a headscarf.
Responding to this, Mucchala pointed out that the petitioners have not sought for a general declaratory relief and have sought for quashing of the impugned GO and permission for them to attend classes with hijab.
"We have been wearing head scarf, it is a piece of cloth covering the head not the face, it should be permitted to use it. It is not right for college to prevent us from doing that. If it is a bonafide practice of conscience, it should be allowed under Article 25. It is not necessary to consider if it is essential religious practice or not."
Mucchala quoted scholar Muhammad Pickthall to argue that true Islamic tradition requires veiling of the head.
"The thing is even hadiths also shows that face need not be covered but hijab should be worn. There are enough religions traditions, govt has admitted this in their reply," he said.
He referred to the observations in Ayodhya case that the Court should be cautious not to enter into theological discussions and should only see if the faith and the belief of the worshipper is genuinely held.
"It is inappropriate for this Court to enter upon an area of theology and to assume the role of an interpreter of the Hadees. The true test is whether those who believe and worship have faith in the religious efficacy," it was held in the Ayodhya case.
"Here, the faith and belief is that she should dress in conjunction with what is stated in Quran and wear hijab. Lordships should respect that…Whatever is stated in Quran, Hadith & Ima must be obeyed."
Composition of CDCs questionable: Kumar
Senior Advocate Professor Ravivarma Kumar opposed the constitution of CDCs insofar as it confers executive powers on MLAs are concerned. He submitted,
"Kindly see the composition of CDC. President will be local MLA; Nominee no. 1 is Vice President who is local representative of MLA. Four nominees of members. Absolute power is given to the MLA. The college is given on a platter to the MLA, who is a political man."
He relied on the case of Bhim Singh v. Union of India & Ors. (MPLADs case) where the Supreme Court that MPs only have recommendatory powers.
"Kindly test the validity of this exercise on test laid down by the Supreme Court. There is no control over the MLA, he acts like a monarch in the college. Can the Principal question him? The MLA should be held accountable."
Wearing hijab not against public order: Kulkarni
Dr Vinod Kulkarni, party in person, argued that not wearing hijab is against public order.
"By not wearing hijab, public disorder is seen in our state, riots are seen, recent murder in Shivamogga. Wearing of hijab is not against public order… As per Holy quran, hijab is practiced since years."
He urged the Court not to rely on the Turkish judgment cited by the Respondents which upheld hijab ban and to apply the Indian Constitution, supreme law of the country.
(Editor's note: Yesterday Senior Advocate Devadatt Kamat appearing for the petitioners had pointed out before the Court that the said Turkish decision has been overruled.)
Plea to restrain Media from chasing Hijab clad students & teachers dismissed
The Court today dismissed a PIL seeking to restrain media houses from chasing hijab clad students and teachers while proceeding to their schools & colleges and from video-graphing and photographing of children and teachers near to their schools while they were removing their hijabs and burqas.
The bench opined that the aggrieved persons can take recourse various Acts protecting the rights of children and women and file a complaint with the police authorities.
"You make a complaint to the appropriate authorities, they will act on it," the Chief Justice said.
Plea seeks CBI/NIA probe to assess veracity of students' agitations
The Bench also heard Advocate Subhah Jha, appearing in a petition filed by Ghanshyam Upadhyaya, a practicing advocate, opposing hijab. The plea also sought for CBI/NIA probe into the students' agitation, alleging provocation by extraneous organizations like PFI, Campus Front, SIO, Jamaat E Islami.
Jha relied on the Allahabad High Court's decision, in Prayag Das v. Civil Judge, Bulandshahr & Ors. where a lawyer sought permission for advocates to wear dhoti-kurta in court rooms. It was argued therein that not permitting dhoti-kurta was against national culture. However, the Allahabad High Court rejected the plea and emphasized on on the importance of dress code.
Jha also relied on the Kerala High Court's decision where it was held that prescribing a dress code for Advocates can only be termed as a "reasonable restriction" and cannot be termed as either arbitrary or unreasonable.
At this juncture, Justice Dixit inquired about the relevance of these judgments in the present context. "We are talking about uniforms in school. How these judgments are relevant?"
Jha stated that he is emphasizing on the importance on uniform.
"A uniform prescribed dress worn by the members of the Bar induces a seriousness of purpose and a sense of decorum which are highly conducive to the dispensation of justice...," Jha quoted from the Kerala High Court's decision, stating that in this case dress code is relevant with the object of dispensation of education.
The Bench told Jha to argue on the aspect of CBI/ NIA probe.
"Do you have any material showing extraneous elements, then we can consider. So far as religious issues, we have heard others," the Chief Justice said.
"An agitation of this magnitude cannot be orchestrated overnight. This cannot be turn out of blue. There are photographs showing the girls were not wearing hijab earlier. Suddenly petitions are filed one after another, senior lawyers across the country are engaged."
The Chief Justice opined that the Court cannot get into presumptions and asked if there is material to base the allegations.
"Attendant circumstances indicate that there is more to it than meets the eye. Prima facie credible information is only necessary to set criminal law into motion. Court may call for a report from Union of India," Jha said.
The Bench then stated that it has already called for a report from the Govt.
Traditions can't be restricted to four corners of one's house in name of Secularism: Tahir
Opposing the constitution of CDCs, Tahir pointed out that not even a single document produced to show that powers and functions of CDCs. He stated that the body was constituted only in 2014 and before that, there was no such committee.
The AG clarified that prior to 2014, there were College Betterment Committees.
Opposing AG's submissions on individual dignity, Tahir said,
"Learned AG has said if Court declares Hijab as essential, all will have to wear and other women's interest have to be considered. Namaz nobody has dispute that it is an essential part of Islam. So many people don't pray Namaz, so do they go out of Islam?"
On the aspect of secularism, Tahir said,
"First the question is, are our institutions really secular? Saraswati pooja and Ayudha pooja are allowed, Court has said rituals not hindering anybody's rights can be allowed. In this particular GO, it is a case of indirect discrimination. Tahir: Uniformity in the name of secularism will mean only minorities will be at loss."
He stated, today if it is declared that school is a secular place where head scarf is not allowed, then tomorrow, the government may come and say that mall is also a secular place. "So will our traditions remain in four corners of the house?" he asked.
What transpired during course of 11-days hearing?
The controversy erupted after few Muslim girl students of Govt PU college were denied entry for wearing headscarf. They contended that wearing hijab is part of their religious and cultural practice.
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.
The Court has clarified that the interim order will apply to degree colleges as well, where uniform has been prescribed and that the order confines only to students.
It is the petitioners' case 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. They have 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.
They have also challenged a Government Order dated February 5, which allegedly targets the Muslim community.
Read detailed arguments by petitioners' side here:
Permitting Hijab A National Practice; Even Kendriya Vidyalayas Allow; State Can't Say It's Not Essential : Kamat To Karnataka HC
Hijab Ban: South African Judgment Allowing Hindu Girl To Wear Nose Ring In School As Cultural Practice Cited Before Karnataka HC
If Turban Wearing People Can Be In Army, Why Not Hijab Wearing Girls In Classes : Ravivarma Kumar To Karnataka High Court
The Advocate General appearing for the State has argued: (i) wearing of hijab does not fall within the essential religious practise of Islam; (ii) right to wear hijab cannot be traced to freedom of expression under Article 19(1)(a) of the Constitution; (iii) Government Order dated February 5 empowering College Development Committees (CDCs) to prescribe uniform is in consonance with the Education Act.
It is further State's contention that wearing hijab does not stand the test of constitutional morality and individual dignity, laid down by the Supreme Court in Young Lawyers Association v. State of Kerala (Sabarimala judgment).
Read State's arguments here:
Hijab Ban - Students Should Not Wear Religious Symbols In Educational Institutions : Karnataka Govt Tells High Court
Hijab Not Essential Practice Of Islam, Karnataka AG Says; What Was Necessity Of Saying This In GO, Asks High Court?
State Hasn't Banned Hijab, Says Karnataka AG; If Institutions Permit, Will You Object? High Court Asks
Hijab Should Satisfy Tests Of Constitutional Morality & Individual Dignity As Held In Sabarimala Case : AG Tells Karnataka HC
The Respondent college and its teachers have argued that students must follow the prescribed uniform to maintain discipline and public order. It is their case that wearing religious symbols in a public place like school would be conducive to the Constitutional ethos of Secularism.
Hijab Case - Allowing Religious Symbols In Educational Institutions Against Secularism : Colleges & Teachers Tell Karnataka HC
In his rebuttal arguments, Kamat argued that people who want to wear head scarf are being denied right to education on the pretext of the impugned GO. So far as constitutional morality is concerned, he submitted that Sabarimala and Navtej Johar judgments that were cited by the Advocate General are "pro-choice" judgments. "Constitutional morality is pro-choice. It is a restriction on state power," he said.
Hijab Case- Sabarimala Judgment Was Pro-Choice; Constitutional Morality Is A Restriction On State Power : Sr Adv Kamat Argues In Karnataka HC
(Edited and compiled by Akshita Saxena)
Live Updates of the hearing available here.
Live Stream of the hearing available here: