K’taka HC to consider mediation only if parties agree to it

Hijab controversy
Image Courtesy:aninews.in

During the February 17 hearing, the Karnataka High Court bench of Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi, while dealing with petitions against the hijab ban in educational institutions in the state,were presented with a plea for mediation between the parties.However, the bench expressed a doubt as to whether mediation could be possible. It said that it will consider the same only if both parties agree to reach consensus on the issue vide mediation.

While not much transpired at the February 17’s short hearing, the previous day saw a slew of arguments.

No need for interventions

The bench stated that since the Petitioners are represented by Senior Advocates there was no such requirement of interveners at this moment. If the bench needs the assistance in the subject matter, the bench will hear the intervenors.

CDCs have no authority

Senior Advocate Prof Ravi Kumar started his submissions by stating that under the guidelines issued by the Public University (PU) education department for the academic year 2021-2022, it saysthat no uniform is prescribed to PU government colleges, Moreover, thePrincipal cannot insist on uniform, and will face disciplinary action if uniform is insisted upon.

He further submitted that the government has delegated the power to prescribe uniforms to the College Development Committees (CDC). He further requested the Court to look at the Education Act which states that legislature has expressly authorised the authorities coming under the Act in Section 143 and that CDC is not an authority, much less a subordinate authority. So, delegation cannot be made to it.

Kumarsaid, making further submissions, that CDCs are constituted by a circular in 2014 and not an Order. The circular says CDC is to be constituted for the purpose to utilise the grants, as well as maintain education standards. “This CDC is not for students’ welfare. It is only for academic standards. Under the CDC, the MLA took over the Administration which is subordinate to the Government. MLA cannot be made subordinate to the Government. That is unknown in our Constitution and violates the separation of the powers,” he said.

He then supported his submission with a stay order of 2015, where the state government constituted a committee under local MLAs, for distributing houses under the free housing scheme. That order was challenged as MLAs can’t be given administrative powers. “The constitution of a committee of this nature gives a death blow to our democracy and separation of powers,” he contended.

Education should promote plurality

Kumar concluded his argument by saying that the goal of education is to promote plurality, not to promote uniformity or homogeneity, but heterogeneity. “Classroom should be a place for recognition and reflection of diversity in society. ‘Heterogeneity in classroom should be maintained. This is the motto of RTE Act’ – this was stated by Govt of India before the Supreme Court in the Society for UnaidedPvt. Schools of Rajasthan v/s. Union of India &Anr. (WP 95 of 2010; decided on April 12, 2012),” he said.

“If people wearing turban can be in the Army, why not a person sporting a religious symbol be allowed to attend classes,” he added.

Kumar also made a pertinent point that the change in uniform should be notified at least a year in advance as per the Rule 11 and 12 of the Education Rules, 1995.

Yusuf Muchhala’s arguments

Senior Advocate Yusuf Muchhala pointed out the arbitrariness of the February 5 Government Order and stated that principle of manifest arbitrariness was used by the Supreme Court while striking down triple talaq.

He also made a significant argument that a practice need not be essential practice for it to be protected under Article 25 of the Constitution.He added that assuming the State wants to implement a universal uniform, it should consult persons whose rights are affected.

The video of the hearing may be viewed here: