Hijab ban case: K’taka HC concludes hearing, reserves judgement

The Court grants parties liberty to file written submissions

Hijab Controversy

During the February 25 hearing, the bench of Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi of Karnataka High Court, while dealing with petitions against the hijab ban in educational institutions in the state, concluded the hearing and reserved the judgement.

Senior Adv. Yusuf Muchhala brought to the attention of the court that the Petitioners had sought the quashing of the February 5 Government Order (GO), and asked for permission to attend the classes wearing hijab. Mucchala 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 are genuinely held.

Senior Adv. Professor Ravi Kumar on his rejoinder submitted to the Court that, “Absolute power is given to the MLA. The college is given on a platter to the MLA, who is a political man. Principal is only there to implement the decision of the MLA. There is no control over the MLA, he acts like a monarch in the college. The MLA should be held accountable. Giving control to the MLA is an anachronism. That is the crux of this.” He was referring to K Raghupati Bhat who is the Member of Legislative Assembly (MLA) from Udupi, and has allegedly added fuel to the controversy.

Adv. Balakrishna made submissions in the Public Interest Litigation (PIL) seeking to restrain the news media from taking videos and pictures of girls removing hijab at college gates to which the Court responded saying the aggrieved persons can make a complaint before appropriate authorities.

Adv. Jha made submissions representing Adv. Ghanshyam Upadhyaya. He quoted a Kerala High Court Judgement to show the importance of uniform. He also referred to a Bombay High Court judgment on hijab which said, “There is no established practice of Muslim girl having to wear headscarf while studying in an all-girls-schools. It is not obligatory for her to wear headscarf in an exclusively girls’ school.” Adv. Jha further submitted, “This could not have turned 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.”

Clarifications by Adv. Tahir

He submitted that the College Development Committees (CDC) came into force in the year 2014. Before that there was no such committee. “The power was given in 2014, function assigned. Not even a single document produced, to show that College Development Committees (CDC) has done the function,” he submitted. While, not much transpired at the February 26 hearing, the previous day saw a slew of arguments.

Uniformity and Secularism

Senior Adv. Guru Krishnakumar appeared for a lecturer from the Udupi Pre University college, and said, “The regulation which is now sought to be challenged would have to be considered from the point of view of the object it seeks to achieve.” The objective in this case is to bring in uniformity and ensure no discrimination in the way students are treated. “We are dealing with activity which is in a secular place,” he further stated. “The regulation brought in would have to be tested on the anvil of object of non-discriminatory treatment of students pursuing secular education in a secular place,” he submitted. The purpose of prescribing a dress code is to bring about equalisation and equality in a common platform. The Karnataka Education Act recognises this and also allows schemes for such purposes.

In conclusion, Adv. Guru said, “The regulation (impugned GO) in question will have to be also understood in the light of the fact that it is not intended to interfere with religion per se. It is only related to education.”

Education or Principles?

Senior Adv. AM Dar submitted to the Court, “We live in diversity, harmony, please allow our girls to cover heads, it will not cause any prejudice to anybody. This is not a Hindu Rasthra. This is not an Islamic Republic. This is a democratic secular republic. This is cause of life and death for us. Either we will have to leave our education or our principles.”

CDC – A Marga Darshak mandal

Senior Adv. Kamat stated that the College Development Committee is actually a MLA committee in his point of view. He further asked whether the College Development Committee has the jurisdiction to prescribe the GO. In support of this point he submitted, “Please have a look at Section 143 of the Education Act. CDC is constituted by a 2014 circular. I am not challenging the circular. I am challenging the vesting of executive functions on this CDC, which are for the authorities under Act.” He stated, “As long as the CDC remains a Marga Darshak mandal, I don’t have any problem. Let them remain as a guiding force. But the problem is when statutory functions are given.”

“There is a Parliamentary law, Commissions for Protection of Rights of Children Act. The Act says rights of child mean the same rights as the international convention of child rights, to which India is a signatory,” he said. “The international convention expressly accepts headscarf. I am saying this in response to the argument that it is a regressive practice. Hijab is not a regressive practice, wearing of headscarf is diversity,” he submitted. “Education Act is not an act for reform of religion within the meaning of Article 25(2). The Education Act and Uniform rule cannot be a measure of social reform,” he submitted to the Court. He further submitted, “People who want headscarf or turban, are denied the right to education on the pretext of this GO. Their right to education, which is paramount, is being put on the backburner. As a state, you should facilitate and create an enabling atmosphere.” He concluded his argument with what Dr. BR Ambedkar said after the drafting of the Constitution – “However good the Constitution is, if the people who implement it are bad, then it will be a bad result.”



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