'We Will See': Supreme Court On Plea For Urgent Hearing Of Appeal Against Karnataka High Court's Hijab Verdict

Supreme Court on Wednesday said that it will list after the Holi vacations, the petitions challenging the Karnataka High Court Judgment which held that Hijab is not an essential religious practice of Islam and upheld the ban on wearing headscarves in schools and colleges.

Senior Advocate Sanjay Hegde mentioned the matter today, stating that there is urgency since the exams are upcoming and several girls are affected by the High Court's order.

However, the Bench said,

"Others also mentioned, let us see. Give us time. We will see, we will post matter. Let us see we will list after vacations." 

On Tuesday a Muslim student named Niba Naaz filed a Special Leave Petitions challenging the High Court Judgment through Advocate-on-Record Anas Tanwir.

Aisha Shifat,1st year student of the Government PU College, Kundapura, Udupi District, Karnataka has also moved the Supreme Court 

A Full Bench of the Karnataka High Court held today morning that the wearing of hijab is not a part of Essential Religious Practice in Islamic faith and thus, is not protected under Article 25 of the Constitution.

The Court further held that prescription of school uniform by the State is a reasonable restriction the students' rights under Article 25 and thus, the Government Order issued by the Karnataka government dated February 5 is not violative of their rights.

Accordingly, the Court has dismissed the petitions filed by Muslim girl students, challenging the action of a government PU colleges in denying their entry for wearing a hijab (headscarf).

Chief Justice Ritu Raj Awasthi read out the operative portion of the judgment in the open court as follows :

"Our answers to the questions are, wearing of Hijab by Muslim women does not form Essential Religious Practice in Islamic faith.

Our second answer is prescription of school uniform is only a reasonable restriction, constitutionally permissible which students cannot object to.

In view of the above, the government has power to issue the GO of February 5 and no case is made out for its invalidation.

All writ petitions being devoid of merits are dismissed".

On Tuesday a Muslim student named Niba Naaz filed a Special Leave Petitions challenging the High Court Judgment through Advocate-on-Record Anas Tanwir.

Main arguments in the special leave petition

The Special Leave Petition raises the following arguments :

The Karnataka Education Act does not mandate uniforms in colleges and does not confer any power to the Government to issue the Government Order dated February 5 in which it was observed that Hijab was not an essential practice.

The High Court has failed to note that the right to wear a Hijab is protected as a part of the right to conscience under Article 25 of the Constitution. It is submitted that since the right to conscience is essentially an individual right, the 'Essential Religious Practices Test' ought not to have been applied by the Hon'ble High Court in this instant case.

Assuming the 'Essential Religious Practices Test' does apply, the Hon'ble High Court has failed to note that wearing of Hijab or headscarf is a practice that is essential to the practice of Islam.

The High Court has failed to note that the Indian legal system explicitly recognises the wearing / carrying of religious symbols. It is pertinent to note that Section 129 of the Motor Vehicles Act, 1988, exempts turban wearing Sikhs from wearing a helmet. Order IX, Rule 8 of the Supreme Court Rules makes a special provision for affidavits that are to be sworn by pardanashin women. Furthermore, under the rules made by the Ministry of Civil Aviation, Sikhs are allowed to carry kirpans onto aircraft.

High Court failed to appreciate the contention that right to wear hijab comes under the ambit of right to privacy under Article 21 and right to freedom of expression under Article 19(1)(a) of the Constitution.

The petitioner also argues that the High Court failed to address the issue of the State failing to control the hooligans who created law and order issues.

"The Hon'ble High Court has failed to highlight the actions of the Respondent which have shifted the burden of maintenance of public order from the State to the public on the basis that the wearing of Hijab by the Petitioner is the sole reason for the situation. This is akin to the claim that the Petitioner is responsible for the issue because they have chosen to practice their faith publicly", the petition states.