Thursday, March 23, 2023

Hijab controversy: Karnataka High Court restrains students from wearing any religious attire to schools, colleges for time being

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THe Karnataka High Court on Wednesday restrained students from wearing Hijab or any other religious attire to educational institutions for the time-being.

A three-Judge Bench, headed by Chief Justice Ritu Raj Awasthi, said “We are ready to decide the issue at the earliest. We can conduct day-to-day hearing.

“We request and we will pass an order that let the educational institutions start but till the matter is pending and under consideration before this court, these students and all the stakeholder, they shall not insist for wearing any religious gourmet or headdress or saffron satwa or anything.

“We restrain everyone because we want peace and tranquility in the state, which has to be maintained,” it added.

Senior Advocate Sanjay Hegde submitted facts of the case. He said the teachers insisted to remove the headscarf, but the petitioner continued saying that it was part of their religious practice and the headscarf was not coming in the way of their school discipline.

In August, 2020, the respondents had rebuked the petitioner, stating that their parents singed the consent form of terms and conditions of the school. The matter went to such an extent that the teachers insisted other students to pull the scarf and if they didn’t get in line, they will face the same treatment.

Since September 2021, the petitioners faced discrimination in class, they were removed from the class, punished and marked absent. In December, 2021, the parents came to talk to the Principal.

They said since the exams were going on, they will discuss the issue. Respondent 6 accepted there is no specific condition regarding the headscarf and it is only regarding school discipline.

After the exams, same conduct was followed by the respondents. Even the parents came to meet the principle, they made them wait for the whole day to frustrate them and to concede before them.

The petitioner approached the district education officer who then scolded the college authorities for not allowing them to attend class, the education officer directed the college to allow the students to attend class immediately. The Principal called a meeting of college development authority, which has no legal sanctity and was only a composition of political entity for political agenda. The Chairman of CDC, Respondent no. 15, dictated the petitioner not to wear headscarf and if they continue, they will direct the other students, the Hindu students, to start wearing saffron mufflers to counter them and blend the issue into communal colour.

The petitioners were made to sit outside the class. On January 15, the petitioner losing hope, decided to start a protest in front of the college to seek their right of education, which they were denied.

On January 14, the Principal scolded them for conducting protest in front of the college and forcefully asked them to write an apology and when they denied to write it, the respondents 13 manhandled the petitioner and threated to spoil their education as the whole system was against them.

In Karnataka Education Act, 1983, there is no provision which deals with uniform.

Chief Justice: Do you want to say that there should be no uniform?

Sanjay Hegde: The petitioners are denied the right to attend classroom education only on the sole ground that they choose to wear hijab. Karnataka education rules, 1995 – provisions of clothing, uniforms etc, this provision is not applicable for colleges, but on primary school. There is no prescribed penalty. Even if there was a penalty, not allowing students to attend class is unproportionate. Right of free conscious of the students.

Hegde: It is not the case of essential religious practices, but a case of essential right of the girl child to get education. Perceived sense of dignity to a girl child. There is one operating principle in India; Kindly Adjust. Why do we stick our country on one single path? Consistent to dignity of the citizen. Right to wear hijab is covered under right to expression, right to privacy and right to conscience which cannot be infringed upon without any valid exemption of law.
The court in legal service authority, 2014 SC 438 -right of clothing and appearance falls within ambit of right to expression under Article 19(1) (a) of the constitution. In Jigya Yadav case 2021 7SCC – identify is an amalgam is various internal and external including acquired characteristics of an individual. The freedom of identity is safeguarded by right to expression under Art. 19(1)(a) which can only be curtailed by reasonable restrictions mentioned under Article 19(2).
Article 25(r) – two rights are safeguarded – freedom of conscience and freedom for propagation of a religion.
Assuming that the essential religious practise test applies, wearing of Hijab is essential to Muslim Faith. In HC judgements- 2015, it cannot be ignored that in our country varied and diverse religions and customs. It cannot be insisted for one dress code to be followed feeling which a student is prohibited from sitting in an exam. Para 30. Covering the head and wearing full sleeves has been considered as an essential practise of the religion. It was held that practical difficulties cannot be an excuse to dishonour the fundamental rights. Dress code should not be enforced against candidates who by the virtue of article 25. In this case the court was dealing with a temporary issue of conducting of exam. Hijab was not allowed so that students could not cheat. This is a government college which belongs to all the citizens of India. Denial of the right to attend college will have irreversible challenge.
Section 129 of motor vehicles act- Sikh man exempted from wearing helmet.
Rule 8, where deponent is a pardah nashi lady, she shall affirm her oath before a lady registrar duly appointed.

Senior Advocate Devadatt Kamat: My arguments are only for the purpose of interim reliefs. There are 12th standard students, who are wearing hijab and going to college for the last two years. On February 3, they were stopped and told that unless they remove the headscarf, they cannot go in.

Kamat: My case on interim relief today was based on 3 broad considerations. This governemnt order issued on February 5 suffers from total non-application of mind as it says Hijab and headscarf is not a part of Article 25.
Chief Justice: The thing is, come to the operative portion of the Government order and how does its effect? The institutions, the person to whom it is binding they have to by the operative portion of the Govt order. It may not have been said, it is a foundation to whatever the operative portion says.
Devdatt: Ultimately, the building is built on the foundation, which is that prohibition of headscarf is not a violation of Article 25 and it is enabling provision for the colleges to now say, which are saying, look here! You can’t wear a headscarf. I am saying if the foundation goes, the building can’t stand. So therefore, the foundation itself is totally questionable.

Devdatt: Kindly see the three judgements that the state has relied upon, the first judgement is a ruling of WP 35923 totally inapplicable to this case. The religious dress in a private educational institution is an issue in the writ petition, not a government college. What the single bench says that ultimately the minority educational institution cannot be forced.

The court has to balance competing fundamental rights. In context of Article 30, the court says you have to balance the fundamental rights.

Chief Justice: If they have considered the judgement in larger public interest while issuing this order, they have to manage the rights of both the educational institution and the individual religious rights. Now, considering the judgment what is wrong?

Devdatt: This decision was in a context of private minority education institution which has a separate set of fundamental rights under Article 30.

Chief Justice: The private educational institution also comes under the Constitution, only thing that they have got additional rights to manage the institution under Article 13.

Devdatt: They have a right to admit the students of their choice

Chief Justice: It does not mean the general law will not apply to them.

Devdatt: What is its relevant verse in holy Quran? Verse 24.31 believing women to reduce of their vision and guard their private parts and not expose their adornment except that which appears thereof and to wrap a portion of their headcovers over their chests and not expose their adornment except to their husbands, their fathers, their husbands’ fathers, their sons, their husbands’ sons, their brothers, their brothers’ sons, their sisters’ sons, their women, that which their right hands possess, or those male attendants having no physical desire, or children who are not yet aware of the private aspects of women.

Karnataka High Court: We request and we will pass an order that let the educational institutions start but till the matter is pending and under consideration before this court, these students and all the stakeholder, they shall not insist for wearing any religious gourmet or headdress or saffron satwa or anything, that we will restrain everyone because we want peace and tranquility in the state which has to be maintain.

High Court: The matter is before the court now. We can continue the hearing on day-to-day basis also and we are ready to decide the issue at the earliest, but the issue is that the peace and tranquility must be restored.

Kamat: What my lordship is saying as the officer of the court, I respectfully submit that would amount to the suspension of Article 25 as far as these students are concerned.

High Court: The thing is, if you want us to decide these issues which also hold some constitutional importance, then you have to cooperate.

Devadtt: Kindly see, we are being asked to choose between food and water. Both are essential. Please don’t mistake us. We are asked to choose between our education and consciousness. These are a matter of moments. Please let us not choose.

Chief Justice: Please have faith and belief in court. Wait for some time. Don’t insist. We will pass the order

Devdatt: As far as interim orders are concerned, kindly note our submissions my lord. If your lordship can direct that these students have to go without their headscarf that would be a total affront to their rights because your lordship has not determined whether they have right or not.

Chief Justice: It is a matter of a few days only. Try to understand the situation.

Hegde: We cannot afford a few days.

Devdatt: Record my objections that this kind of order cannot be passed at this stage.

Chief Justice: We will restrain everyone from adopting all these measures.

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