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Hijab Ban - Mediation Request Can Be Considered Only If Petitioners & Respondents Agree: Karnataka HC

Mustafa Plumber

17 Feb 2022 11:59 AM GMT

    • Hijab Ban - Mediation Request Can Be Considered Only If Petitioners & Respondents Agree: Karnataka HC

    Responding to a plea for mediation in the hijab case, the Karnataka High Court on Thursday observed that mediation was possible only if both the petitioners and the respondents (State and College Development Committees) agree.The Full Bench was responding to an oral request made by an advocate for mediation in the matter. She said that whatever be the judgment, there will be still problems,...

    Responding to a plea for mediation in the hijab case, the Karnataka High Court on Thursday observed that mediation was possible only if both the petitioners and the respondents (State and College Development Committees) agree.

    The Full Bench was responding to an oral request made by an advocate for mediation in the matter. She said that whatever be the judgment, there will be still problems, and hence suggested mediation to solve the problem. She added that the rights of Muslim girls were being violated.

    However, the Bench, which has been hearing the petitions filed by Muslim students challenging the ban on hijab in colleges, expressed a doubt as to whether mediation could be possible in a Constitutional manner.

    "Constitutional issues are involved. We have to answer those issues. How can mediation be possible? Mediation cannot be done in this manner in such matters", Chief Justice Ritu Raj Awasthi said. But the advocate expressed that she was confident about the success of mediation in the matter. She suggested that the mediation can be done virtually as well.

    "Please try to understand the basic principle that mediation can be done between consenting parties. You first move to the other petitioners, and to the respondents, and if all of them agree, then we will consider your request", the Chief Justice said before adjourning the hearing.

    No major developments happened in the case today as the Bench primarily considered a few PILs which were ultimately held to be not maintainable for lack of declaration of bona fides of the petitioners and material pleadings.

    Advocate General Prabhuling Navadgi sought time till tomorrow to begin his submissions in response to the arguments made by the petitioners over the past four days.

    Today, the Bench comprising Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi reiterated its disinclination to hear the intervenors in the matter. "We fail to understand the concept of intervention applications. We were hearing petitioners & then respondents. If we require we will take your assistance. You should not as a matter of right ask to be heard. We don't need intervention of anybody," it remarked.

    The bench went on to dismiss a PIL filed in the matter by a purported social activist through Advocate Rahamathulla Kotwal noting that the petitioner had not made a declaration as to its bonafides under the applicable PIL rules, and hence the same is not maintainable.

    Another petition, filed by five college going girls, seeking permission to wear hijab, was dismissed on the ground that the pleadings did not mention the particulars of the institution they are studying in. However, liberty was granted to file afresh with all material particulars.

    The Bench heard Dr. Vinod Kulkarni, party in person, seeking an interim relief to let Muslim girls sport hijab at least on Fridays, i.e., on Juma day, most auspicious day for Muslims and the holy month of Ramzan, which is coming soon.

    "This hijab issue is creating a hysteria and is affecting the mental health of Muslim girls. As per the preamble of the Constitution, guarding health is the duty of the state...Banning hijab tantamounts to banning Quran," he remarked.

    Case so far

    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.

    Last week, 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.

    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'.
    Yesterday, Prof Ravivarma Kumar, Senior Advocate, appearing on behalf of the petitioners 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 also heard Senior Advocate Yusuf Muchhala for the petitioners, who argued on the aspect of right to freedom of religion, contending 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 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.

    (Edited and compiled by Akshita Saxena)

    Live Updates of the hearing available here.

    Live Stream of the hearing available here :


    Tags
    #Karnataka Hijab Ban#Hijab banRight To Wear HijabArticle 25 of the Constitutionreligious freedom
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