The Karnataka High Court has released its interim order denying relief to the petitioners in the hijab-ban issue. The bench of Chief Justice Ritu Raj Awasthi and Justices Krishna Dixit and JM Khazi had orally stated at the conclusion of the February 10 hearing that they will pass order that institutions should reopen, but no student should insist on wearing any religious dress; thus denying the prayer for interim relief of the petitioners.
Even before the formal order was released, the petitioners had reached the Supreme Court and sought urgent hearing in the matter before the CJI NV Ramana led bench. However, the court showed no hurry to hear the matter while insisting that it was aware what was happening in the state as well as in the hearings. “You also have to think over whether it’s proper to bring it to Delhi. Definitely we’ll examine and we’ll have to protect constitutional rights. Mr Kamat, don’t go into merits,” the CJI reportedly said. He declared that the bench will hear the matter at an appropriate time.
Petitioners submissions before HC
Senior Advocate Sanjay Hegde appearing for the petitioners in W.P.No.2146/2022 had began his arguments saying, “It was a small thing within a college that has been allowed to go beyond control, without timely intervention by the administration.”
He argued on administrative issues rather than going into consitutional issues, and said that the Karnataka Education Act, 1983 under which the Government Oorder (G.O) dated February 5 was issued does not have any provision enabling educational institutions to prescribe uniform for students. Further, the Karnataka Educational Institutions (Classification, Regulation & Prescription of Curricula, etc.) Rules, 1995 “apart from being incompetent, are not applicable to Pre-University institutions since they are promulgated basically for Primary & Secondary schools.” He continued, “These Rules do not provide for the imposition of any penalty for violation of the dress code if prescribed by the institutions. Even otherwise the expulsion of the students for violating the dress code would be grossly disproportionate to the alleged infraction of the dress code.”
Hegde insisted, “All stakeholders should show tolerance and catholicity so that the girl students professing and practicing Islamic faith can attend the classes with hijab and the institutions should not insist upon the removal of hijab as a condition for gaining entry to the classrooms.” Hegde also highlighted that without going into the deeper issues, the matter of education of the girl child was more important and advised that a middle plath be taken until the issue is resolved.
Senior Advocate Devadatt Kamat appearing for petitioners in W.P.No.2880/2022 assailed the subject of the Government Order, contending that the decisions of Kerala, Madras and Bombay High Courts on which it has been structured, have been wrongly construed by the government, 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. He contended that dress and attire are a part of speech and expression; right to wear hijab is a matter of privacy of the citizens and that institutions cannot compel them to remove the same.
“The state is playing by the fire. In the G.O, the State says that head scarf is not a religious practice and discretion is given to CDC to decide. Our fundamental right is held hostage to some school committee. The G.O says prohibition of head scarf is not a violation of Article 25. The GO is not as innocuous as the State says,” submitted Kamat.
The Advocate General briefly submitted that no prima facie case is made out for the grant of any interim relief. He argued that the G.O does not prescribe any uniform and leaves it up to the institutions to prescribe the uniform they want.
The court’s order
After hearing the submissions, the bench said,
“We are pained by the ongoing agitations and closure of educational institutions since the past few days, especially when this Court is seized off this matter and important issues of constitutional significance and of personal law are being seriously debated. It hardly needs to be mentioned that ours is a country of plural cultures, religions & languages. Being a secular State, it does not identify itself with any religion as its own. Every citizen has the right to profess and practise any faith of choice, is true. However, such a right not being absolute is susceptible to reasonable restrictions as provided by the Constitution of India.”
The court noted that, “The interest of students would be better served by their returning to the classes than by the continuation of agitations and consequent closure of institutions.”
It requested the state government to reopen educational institutions and allow the students to return to the classes however, at the same time, restraining “all the students regardless of their religion or faith from wearing saffron shawls (Bhagwa), scarfs, hijab, religious flags or the like within the classroom, until further orders.”
The court clarified that this order applied only to institutions where the College Development Committees (CDC) have prescribed the student dress code/uniform.
The court will continue to hear the matter on February 14 at 2.30 P.M.
The order may be read here:
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