Hijab Case: Karnataka High Court Orders No Religious Dress Until the Matter Is Decided

(Judicial Quest News Network)

In a significant development the Karnataka High Court on Friday uploaded the interim order passed on Thursday in the petitions challenging Hijab ban in colleges in the state.

The Court’s order allowed the opening of the colleges but that no should to insist on wearing “religious clothes” until the time the court decides the matter.

The interim order is only applicable to those institutions which have prescribed a uniform dress code.

The court have further said that “Pending consideration of all these petitions, we restrain all the students regardless of their religion or faith from wearing saffron shawls (Bhagwa), scarfs, hijab, religious flags or the like within the classroom”

The three-Judge Bench of Chief Justice Ritu Raj Awasthi and Justices Krishna S.Dixit and Jaibunnisa M Khazi was hearing the matter after it was referred to a larger bench. The hearing will continue on Monday at 2:30 PM.

The have observed that 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 & tranquillity.

It was also observed that Endless agitations and closure of educational institutions indefinitely are not happy things to happen. The hearing of these matters on urgency basis is continuing.

In the order the court has clearly mentioned that 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 interim order which was delivered by the Karnataka High Court have been challenged in the Apex Court by some of the petitioners.

Contending that it amounts to an effective suspension of their fundamental right to practice religion.

The Advocate appearing for the petitioners have objected to the interim order, saying it amounts to suspension of our rights.

The issue begun in December last year when a few students who wear the hijab to government pre-university college in Udupi were barred from entering. In other colleges some Hindu Students started coming to the college wearing saffron scarves as a ‘protest’ news reports have now found the role of Hindutva group in mobilising these counter protests.

Recently the State government said it was looking into the matter and passed an order saying all students must adhere to the uniform. Chief Minister Basavaraj Bommai on Tuesday ordered the closure of all high schools and colleges in Karnataka for three days due to rising tension over the issue.

Senior Advocate Sanjay Hegde, appeared fro stiudents from Udupi, Senior Advocate Devadatt Kamat Appeared fro students from Kundapura and Advocate General PK Navadagi, appeared for the State on the aspect of interim relief.

Senior Advocate while arguing the matter have cited the Supreme Court Judgement in NALSA vs Union of India where it was held that clothing can also form part of one’s express and identity in this regard.

He pointed out that motor vehicle rule exempted Sikhs who wear turbans from requirement of helmet while riding bikes. Similarly, in the Supreme Court rules, there are provisions for pandanuses women.

He also submitted 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 religion of conscience is Bijoe Emmanuel, where the court decided on the freedom of conscience without going into religious practice.

The reliance was also placed on the Kerala High Court Judgement in 2016, which declared hijab as essential religious practice of Islam and allowed two Muslim girls students to wear it while appearing for the CBSE All-India-Pre-Medical Entrance Test (AIPMT).

Similarly, another Judgement from Kerala High Court was also cited in which the Court had refused to direct a private school to allow Muslim students to wear had scarves, was also brought to the notice of the court. However, hedge argued that this judgement was in a different context, pertaining to a private school run by Christian Management.

Arguing further Hegde submitted that “In the fact of our cases, this is a government institution, which belongs to every inhabitant of Karnataka and citizens of India. Can you buy a rule make a set of citizens forsake their essential tenets of religion? There is prima facie case, and a balance of convenience in y 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.

Learned Sr. Advocate Mr. Devadatta Kamat Basically Assailed the Subject Government Order Contending That the Decisions of Kerala, Madras & Bombay High Courts on Which It Has Been Structured Have Been Wrongly Construed by The Govt. As Hijab Being Not a Part of Essential Religious Practice of Islamic Faith and That There Is a Gross Non-Application of Mind Attributable to The Government.

AG Opposes interim relief

Whe petitioners prayed for an interim arrangement, where they can continue to wear head scarves of the same colour as the uniform of the college

The AG also informed the Bench that following widespread student protests, the Karnataka government was forced to declare that colleges be closed for three days.

It was further submitted that when the controversy arises in the case of wearing headscarf in NEET exam and AIIMS medical exam Hon’ble Kerala high court has appreciated the contention of Muslims girls students and permitted them to attend the exam with the headscarf considering wearing headscarf doesn’t come in the purview of impediments suggest under Article 25 of Constitution of India.

Hedge further contended that the GO suffers from total non-application of mind and the judgements cited in it are totally against the state.

While arguing further Hegde claimed that there is no provision for Uniform in the Karnataka Education Act, 1983.He also referred to rule 11 of the Karnataka Educational Institutions (Classification, Regulation and Prescription of Curricular Etc. This, Hegde claimed, are rules indeed for schools