11 Feb 2022 6:27 AM GMT
The Karnataka High Court on Friday uploaded the interim order passed in the petitions challenging Hijab ban in colleges in the state. The Court has requested the State to re-open the educational institutions at the earliest and has restrained students from wearing any sort of religious clothes in classrooms, regardless of their faith, while the matter is pending hearing. The interim order is...
The Karnataka High Court on Friday uploaded the interim order passed in the petitions challenging Hijab ban in colleges in the state.
The Court has requested the State to re-open the educational institutions at the earliest and has restrained students from wearing any sort of religious clothes in classrooms, regardless of their faith, while the matter is pending hearing. The interim order is only applicable to those institutions which have prescribed a uniform dress code.
"Pending consideration of all these petitions, we restrain all the students regardless of their religion or faith from wearing saffron shawls (Bhagwa), and connected matters scarfs, hijab, religious flags or the like within the classroom", the Court said in the order.
The Court further clarified :
"We make it clear that this order is confined to such of the institutions wherein the College Development Committees have prescribed the student dress code/uniform"
The Court observed that elongation of the academic terms would be detrimental to the career of students and that it is in the best interests of the students that they return to classes instead of continuing the agitations over the issue of religious dress.
The Court observed :
"Ours being a civilized society, no person in the name of religion, culture or the like can be permitted to do any act that disturbs public peace & tranquility. Endless agitations and closure of educational institutions indefinitely are not happy things to happen. The hearing of these matters on urgency basis is continuing. Elongation of academic terms would be detrimental to the educational career of students especially when the timelines for admission to higher studies/courses are mandatory. The interest of students would be better served by their returning to the classes than by the continuation of agitations and consequent closure of institutions. The academic year is coming to an end shortly. We hope and trust that all stakeholders and the public at large shall maintain peace & tranquility".
The hearing of the petitions will continue on Monday (February 14) at 2.30 PM. In a related development, some of the petitioners before the High Court have approached the Supreme Court challenging the interim order, contending that it amounts to an effective suspension of their fundamental right to practice religion. Senior Advocate Devadatt Kamat mentioned the petitions before the Chief Justice of India NV Ramana for urgent hearing in the Supreme Court. The CJI said that the Supreme Court will consider the matter at the "appropriate time" as the High Court is already seized of the case.
What happened during yesterday's hearing? The bench comprising Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi refused to grant interim relief in the petitions filed by Muslim students challenging the action of a government college in denying them entry for wearing a hijab (headscarf).
While winding up the hearing, the Chief Justice orally said yesterday :
"We will pass an order, that let the institutions start but till the matter is pending here, no student should insist on wearing religious dress. Till the disposal of the matter, you people should not insist on wearing on all these religious things."
The Bench further expressed that it is inclined to decide the issue at the earliest. However, "we feel that peace and tranquility should be restored. Till decision, you should not insist for wearing these religious clothes which are not conducive."
A single bench had referred the petitions to larger bench on February 9 observing that "questions of seminal importance" are involved. The single bench also said that the question of interim relief will be considered by the larger bench.
Yesterday, the Court heard Senior Advocate Sanjay Hegde, appearing for students from Udupi, Senior Advocate Devadatt Kamat appearing for students from Kundapura and Advocate General PK Navadgi, appearing for the State, on the aspect of interim relief.
Asserting their right to practice religion, the petitioners argued that denial of interim relief would amount to suspension of their rights.
"That will be a total affront to their rights. We are told to choose between food and water and both are essential...When your lordships are considering interim reliefs, your lordships will lean in favour of a situation where individuals can exercise their fundamental rights," Kamat argued.
"It is a matter of few days. Please cooperate," the Chief Justice urged.
Hegde responded, "For few days we cannot be asked to suspend our faith."
The Bench then made it clear that it will restrain everyone from adopting religious practices during the pendency of the case.
Petitioners asset Fundamental Rights under Article 25
At the outset, Hegde cited the Supreme Court's judgment in NALSA v. Union of India, where it was held that clothing can also form part of one's expression and identity.
In this regard, he pointed out that the Motor Vehicles Rules exempt Sikhs who wear turbans from the requirement of helmet while riding bikes. Similarly, in the Supreme Court rules, there are provisions for pardansashin women.
He then argued that Article 25 of the Constitution confers two rights, first, the freedom of conscience and, second, the freedom to practice and propagate religion.
"Here, the petitioners assert the right to wear hijab on the freedom of conscience as well as their right to religion. The lead case on freedom of conscience is Bijoe Emmanuel, where the court decided on the freedom of conscience without going into religious practice."
Hegde pointed out that in Bijoe Emmanuel v. State of Kerala (popularly known as National Anthem Case), the Court did not frame the question whether the refusal to sing the national anthem was part of the essential religious practice of Jehova's Witness, and merely examined if it was based on a bonafide religious belief.
Reliance was also placed on a Kerala High Court judgment in 2016, which declared hijab as essential religious practice of Islam and allowed two Muslim girl students to wear it while appearing for the CBSE All-India Pre-Medical Entrance Test (AIPMT).
Another Kerala High Court judgment Fathima Thasneem v. State of Kerala, refusing to direct a private school to allow Muslim students to wear head scarves, was also brought to the attention of the Court. However, Hegde argued that this judgment was in a different context; pertaining to a private school run by Christian management.
"In the fact of our cases, this is a govt institution, which belongs to every inhabitant of Karnataka and citizens of India. Can you by a rule make a set of citizens forsake their essential tenets of religion? There is prima facie case, and a balance of convenience in my favour, denial to attend college will have serious consequences...In this case there should be interim orders which will protect the rights of the petitioners to attend the 3 months of college."
Wearing is hijab is an essential religious practice, which state can't deny: Petitioners
Kamat argued that the petitioners have been going to college wearing head scarf till February 3, when they were stopped and told to remove the same. Subsequently, a GO was issued on February 5.
The Advocate General told the Bench that the State has issued a GO merely asking all educational institutions to decide their uniforms.
However, Kamat informed the Bench that they have challenged the GO inasmuch as the issue is not merely restricted to prescribing uniforms.
"The students were wearing uniform. They only wanted to wear the head scarf of the same colour. The State has issued a GO saying head scarf cannot be worn. This is part of their religious culture. This is an innocuous practice," he said.
"The state is playing by the fire. In the GO, State says that head scarf is not a religious practice and discretion is given to CDC (College Development Committee) to decide. Our fundamental right is held hostage to some school committee. The GO says prohibition of head scarf is not a violation of Article 25. The GO is not as innocuous as the State says."
He contended that the GO suffers from total non-application of mind and the judgements cited in it are totally against the state. In Fathima Thasneem case, he said, the Kerala High Court held that a private minority institution cannot be forced to allow this. It talks about balancing individual rights with institutional rights.
At this juncture, the Court asked Kamat what is the wrong done by Govt by referring to this judgment in the GO. "To subserve the larger interest of the society they have considered this judgement. What wrong have they done...Private institutions are also under the constitution. General law applies even to them." it said.
Kamat responded, that the Kerala High Court in the 2016 judgment, after discussing the sources of Islamic law including the Holy Quran and Hadith, held that it is a farz to cover the head.
The next judgment cited in the GO, delivered by the Bombay High Court in Fatheema Hussain Sayed v. Bharat Education Society, Kamat said, is also not applicable to the instant case as that was in the context of an exclusively girls school and the Court held that it was not mandatory for a Muslim girl to cover her head while studying in an all-girls school.
The third judgment cited in the GO, delivered by the Madras High Court, he said was in a case where uniform was imposed for teachers and Article 25 was not in issue in that case, as the issue was power to prescribe uniform for teachers.
Kamat then took the bench through a judgment of the Madras High Court in M. Ajmal Khan v. Election Commission of India, and submitted where the question before the Court was whether Muslim women clad in purdahs/ burqas could be photographed for electoral roll. It was held therein that headscarf is an essential part of the religion.
"It is, thus, seen from the reported material that there is almost unanimity amongst Muslim scholars that purdah is not essential but covering of head by scarf is obligatory," the Madras High Court had held.
Colleges not empowered by any statute to prescribe Uniform: Petitioners
Hegde claimed that there is no provision for Uniform in the Karnataka Education Act, 1983. He then referred to Rule 11 of the Karnataka Educational Institutions (Classification, Regulation And Prescription Of Curricula Etc.,) Rules, 1995, which makes provision for Uniform, Books etc. This, Hegde claimed, are rules intended for schools.
"Uniforms are school phenomenon, for students to be identified if they got lost or ran away from school. When students went to college, they stepped out of uniform and uniform in Colleges came much later," he argued.
He added that the 2006 Rules, that are applicable Pre-University, contains no provision for Uniform.
"There is no provisions, there is no penalty in case the uniform is not worn or improperly worn, there is no prescribed penalty. Even if a penalty is prescribed, your lordsips will see if the absolute expulsion of keeping children away is disproportionate...Under the Karnataka Education Act, Penalties prescribed are largely for college management. They are largely in the nature of fines. Because there is no provision for uniform, there is no question of any penalty for want of uniform or for an infraction of a uniform."
AG opposes interim relief
The petitioners prayed for an interim arrangement, where they can continue to wear headscarf of the same colour as the uniform go to the college.
However, the AG informed the Bench that following widespread student protests, the Karnataka government was forced to declare that colleges be closed for three days. He submitted that the State equally wants to resume classes however, "we cannot start with one set of students coming with head scarfs and another set coming with saffron shawls. They must go back to status quo ante."
To this, Hegde retorted,
"It is easy for the AG to say let them go back. But should they be asked to take a conscious decision to stifle their conscience and go back to school...This is not just a case of essential religious practice. This is also a case of essential education for the girl child."
During the course of hearing, Hegde suggested that instead of deciding the issue of essential religious practice, which will protract the hearing, the State government may be asked to take a decision, instead of leaving at the discretion of CDCs.
"It would not be healthy to leave it to the CDC, as they may not see the big picture...There is wisdom in taking a middle path till the Court decides. It can be resolved at the PUC college level and a wise govt can resolve it," Hegde said.
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.
A single bench had referred the petitions to larger bench observing that "questions of seminal importance" are involved. The single bench also said that the question of interim relief will be considered by the larger bench.
The petitioners, students of the Government-run Pre-University (PU) College for Girls in Udupi district, are aggrieved by the alleged illegal and discriminatory action taken by the PU College which has denied them entry into the college on the sole ground of wearing a hijab. They have 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 petitioners 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.
It may be noted that High Courts of Kerala and Madras have already declared wearing hijab as an essential religious practice for Muslim women.
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.
Case Title: Resham & Anr v. State of Karnataka
Citation : 2022 LiveLaw (Kar) 42
(Edited and compiled by Akshita Saxena)
Click here to read/download the order