Thursday, March 23, 2023

Hijab controversy: GO aimed at bringing uniformity in treatment of students in educational institutions: Sr Advocate Guru Krishnakumar to Karnataka HC

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Senior Advocate Guru Krishnakumar on Thursday told the Full Bench of Karnataka High Court that the objective of the Government Order was to bring uniformity in treatment of students in educational institutions.

The Full bench comprising Chief Justice Ritu Raj Awasthi, Justice J.M. Khazi, Justice Krishna M. Dixit were hearing a batch of petitions filed by Muslim girls, seeking quashing of the Karnataka government that restrained women from wearing Hijab to educational institutions.

Senior Advocate Krishnakumar, appearing for respondent no 8, submitted that the regulation that ought to be challenged would have to considered in regards of the objective it ought to achieve.

It was to ensure non-discriminatory environment in the educational institution, added Krishnakumar.

He stated that any regulation brought to bring in non-discriminatory atmosphere in an educational institution cannot be questioned taking back of Article 25.

Whatever be the background of a student, this regulation works to fill up that space and bring in non-discriminatory treatment amongst students pursuing secular education in secular space.

The Counsel for respondents 1, 2, 3 and 4: Advocate General of Karnataka, Prabhuling K. Navadgi for respondents (representing the state) submitted that they have received one complaint in regards of Advocate Nagnanda’s submissions.

Advocate Subhash Jha requested to make submission for the petitioner, to which the Court stated that let him wait for his turn.

Advocate Krishnakumar submitted that second issue he wishes to address is that the grievance of petitioners is mainly on ground of wearing the attire in question.

He stated that a constitutional court has to make a decision on this. He stated that it is a matter of constitutional necessity that Constitutional courts get into this matter.

The Supreme Court has already taken such decision in case of Adi Saiva Sivachariyargal Nala Sangam vs Government of Tamil Nadu. He read paragraph no 38 of the judgement, which talks about the Court observation in regards of the analytical jurisprudence and the need of constitutional courts to intervene. He stated that the regulation is dealing with an activity of the petitioners, which is not even religious necessity.

The third aspect he wishes to highlight was Section 7, which provides the power to regulate the curriculum. While the petitioners have already mentioned that uniform cannot be a part of it, the Counsel submits to mention Section 7(2) of the same Act. It clearly stated that the curriculum can also include schemes in various aspects, which includes to promote harmony. He submits that prescription of uniform is only to bring equality and ensure peace and harmony. He submits that since act provides the power, such decisions are being taken.

He stated that while Article 19(1)(a) is being referred, it has to be noted that there can be freedom of speech and non-speech activity and this is a part of non-speech. Since, it is to achieve larger public good, it has and can be done. To this, he refers the judgment of Bennett Coleman vs Union of India. The principle by this judgement was noted and laid down. He stated that education is a part of secular activity. He thus stated that the grievance so stated shall not be considered.

Senior Advocate Devadatt Kamat for petitioners again came up with rejoinder submitting that he wishes to present and might finish the same within an hour. To this, the Court interrupted and stated that let the fresh cases be heard first and then after the rejoinder starts with.

Advocate Rahamathulla Kothwal for petitioner submitted to have a look at Para 9 of the order. Since the case was review petition, the Court stated that the same shall be heard afterwards after fresh petitions.

Advocate Aditya Chatterjee for petitioner and Senior Advocate Kirti Singh for petitioner (All India Democratic Women Association). The Counsel for the respondent interrupted and stated that the body is not a registered body and hence, submissions must not be recorded. To this, the Counsel submits that they have already filed several PILs and also, they are filing the present via their Vice-president. She submitted that they have already submitted a declaration for the same. The bench stated that before the maintainability, the Court would like to know about any authorisation by the Vice-president. While the Counsel shows the Vakalatnama, the Bench stated that the resolution so signed is signed but the committee is not specified. The bench says that it does not provide with constitution of the committee. The Counsel submits that they undertake to place the same, but the bench stated to provide with the authorisation. The Bench stated that the same was to be signed by everybody and not just the vice-president, to which the Court agrees. Then the Court shifts to the maintainability part. The bench stated that when the direct women are here in the court, why are they coming in between. The Bench stated that assist the persons who are aggrieved and approach the Court. The Bench stated that they can’t waste time by having her when already the aggrieved persons are in front of the Court. The bench stated that it is not for women in general and thus, they shouldn’t be here. The Court asks the petitioner to satisfy the Court on the maintainability of the petition. While the petitioner failed to do so, the Court stated that the petition was not maintainable when the aggrieved persons were already there in the Court with their issue. The Court stated that not satisfied with the maintainability of the petition, they shall pass the order. The Court further stated that the aggrieved persons were already represented by very prominent lawyers and thus if any additions have to be done, the Counsel can assist them. The Bench further stated that private and public interest cannot be mixed up in case of PIL’s. Thus, the Court dismissed the petition.

Advocate Balakrishnan for the petitioner was called up many times. Since no one appeared and the petition was also filed by not complying with the Rule 14, the Court dismissed the petition on ground of non-maintainable.

Advocate Tahir for the petitioner submitted that he was appearing for the petitioner. He stated that he wishes to withdraw both the petitions so filed by him. The Court thus, dismissed both the petitions.

Senior Advocate A.M. Dar for petitioner (students) submitted that earlier, his petition was rejected on ground of cause of action. Thus, now he has complied with the same and mentioned the cause of action. The Court questions that whether the college is government one, to which the Counsel agrees. But the Counsel for the Respondent submits that it is a private college and not a government one. The Counsel for petitioner stated that there is cause of action and he is representing students, which are actually the government aided college. He submits that since he has read Quran, he can prove that the Hijab thing is provided in Quran and is an essential religious activity. He stated that there 4 types of burkha.

  1. Burkha
  2. Abhay
  3. Abraham
  4. Hijab

He stated that Hijab is mandatory in Quran as it is last commandment by Allah as it has come in 4 hijery. By that time Quran was complete. First hijery is that 5-time prayer, second one is jakaat, third is ruling of inheritance, fourth is fasting, fifth is jakaat. While the Counsel mentioned jakaat twice, the Court interrupted to which he did not reply. Then after, he stated again that fifth is hajj. He stated that the term Hijab is exactly not in Hijab but in metamorphically way, it is mentioned to be mandatory. He stated that in modern way, he uses terms like Hijab but in Quran it is Khimmar. He stated that khimar word is originated from Khamra and Gattha. He stated that Quran stated to wear to cover hair, face and chest. He stated that this is all written in Quran that the 3 parts are to be covered. He states that he not arguing for Burkha, but khimar/Hijab shall be allowed. He stated that before the armament of God, the same practice was very common even in Christians and Arab countries in Bandala type. He stated that but the Allah used the word Khimmar in Quran to avoid confusion. He stated that it is mandatory to cover the chest. He stated that wearing of Hijab is command from Allah, i.e., our creator. He stated that earlier, his prophet was taken to Allah. There was a special horse designed to take him. He stated it was full night journey, and asked Mr. Jibril that who are these women. He stated that at that time Khimmar was introduced to make sure that muslim women are identified. This is religious activity which stated that if women do not cover their mentioned private parts, they will be trouble in Hell. He reads the various Surras and mentions that 2 essential religious practices are there. He stated that receive education is also the important religious activity.

The Bench after hearing Surras for so long, stated that they are not able to understand the Counsel and would like to know the relevant surra he is explaining. He mentions that the Surras he read were Surra Guashiya, Surra Narayej (Isra in Arabic) and Surra Aala. He further stated that he has also mentioned the same in the petition. He mentions that they are proud to be Indian as they are from second largest religion, Islam. He mentions that during the Prophet time, countries stated him that they will accept Islam but keep things like Kundan that have Hindu. The prophet had no problem and accepted their request. He stated that ladies have separate space for prayers, Eid is also separate but in Hajj, it is all together but only the headscarf is compulsory to cover the mentioned 3 things. He stated that hence, these 3 things are very important. He stated that there is no judgment till date that why hijab is there. He stated that apart from Quran, he mentions that there are 3 books i.e., Sahi Bukhari, Muslim Sharif and Trimessi which are equally important for the Muslims. He then mentions some aspects from these books. And mentions all women from muslim family to wear the dress so mentioned.

He then mentions to start with Constitutional aspect by mentioning few judgments. The Bench stated that religious issues have been heard. The other counsels can state the Constitutional aspect. But the Counsel insists to mention the same. He requests to read the Preamble of the Constitution and thus begins with the same. He mentioned Keshvananda Bharti judgment and stated that the basic structure can not be changed. And preamble has faith and this belief are from Allah and thus, it has to be considered. He stated that the same comes in basic structure. He said that Article 25 states public health, order and morality.

He said that Hijab enhances reputation and does not bother anyone. It is more about dignity and not at all causing morality. The public order was not caused by Hijab. Instead of putting a Hijab, what if a small cloth is placed on head, he asked. How does it give public order? He stated that the same is not hurting the feelings of other religions. The bench stated that let the Counsel show some mercy on other counsels also. The counsel stated that wearing of Hijab is not hurting anyone’s feelings. The judgments to mentioned by him are,

  1. Ram Manohar Lohiya vs. State of Bihar, Para 55.
  2. Addatyam vs. Trivamkor Divarsan Board SCC, Page 106, Para 16
  3. Church of God in India vs KVR Colony welfare association, 2000, Vol. 7, SCC 282, Para 2
  4. Commission of Police vs. Jagdish 2004 Vol. 12 SCC, Para 9
  5. Dhara Singh vs. Republic of India 2011 SCC 499, Para 531

Some Counsel present physically present in the Court requests to compile his petition with some other petition which is withdrawn by Adv. Tahir. The Court mentions that how a matter be connected to a petition that has been withdrawn. He submits that petitioners are degree students. The Bench agrees to the same and stated that after hearing the Counsel of the petitioner, since the matter is pending, the matter/case can be connected with WP 2902 and the listing can be done along with only.

Advocate Subhash Jha for the petitioner

The bench stated that the Counsel has not paid the Court fee and thus the Court shall not touch the file before that and also it has 14 objections. While the Counsel submits that they undertake to pay the same during the Course of proceedings and since the petition was filed online, there are objections. The Court stated that without Court fee, the petition is not maintainable. On the request of the Counsel, the Court put up the matter for tomorrow.

Senior Advocate Devadatt Kamat came up with a rejoinder.

He said on a lighter note, various no balls were cited by the respondents, which were to be discussed. To start with his writ petition 2880, Kamat said that the petitioners were using their headscarves since the start before order came. He further submitted that the school is a co-ed school. The Bench asks that when the students were admitted, to which he replies 2 years back. He states to throw light on the reliefs. He states that he is not asking for general declaration. He states that he is questioning the government order, wanting the same to be quashed.

He states to have a look at list of documents (47 pages) submitted by AG. He states that the order itself is at page 39. He states that 90% of order is given by the AG and his work is kind of reduced. He states that English version starts from Page 42. He states that even 3 judgments are mentions by Kerala, Bombay and Madras high Court. He states that judgments are not violation of Article 25. He states that AG has stated that the order is not what the purpose was and it is over exaggerated. He states that this understanding of Government in order was totally flawed. Firstly, judgments do not say headscarf is not a part of article 25. Secondly, he states that even the concession of AG has to be discarded, the operation has to also go as per the delegation so done. He states that in administrative law, the action done by government is not permissible. He mentions to cite judgments from compilation and make note of the same (Item no. 1 and 4 from compilation).

He submits that Nagraj Jurisprudence will come in in regards of Hijab to be included in Article 25 and thus Article 14 will be highly disturbed. He comes to the operative part and states that the first part does not bother them much but the secondpart concerns him. He reads the same. He states Sarvajanik Suvyavasthe same as public order and mentions that even the respondent have mentioned the same as it is in their affidavit but now are claiming it to be law and order. he questions that is it a way a government order is read and will it be permissible? He states that the SC has time and again stated to stick to the language of the government order. he states that public order cannot be a facile ground. He states that whether the committee have the jurisdiction to undertake the exercise as contemplated by the government orders. He states that while AG has stated that MLA are there what’s wrong. The Counsel mentions that everything is wrong as the bench must have a look at the Section 143 of the Education Act. He states that MLA is not an officer as per the case of Ashwini Kumar Upadhyay vs. Union of India. He states that he is not challenging the circular as long as the circular remains the Maargdarshak or guiding force. But the problem is when the same is mixed with statutory provisions. He states that thus, on all grounds the Government order cannot stand and thus needs to be quashed.

He states that even if order goes, there is no restriction under Article 25 as to put up Hijab. He questions that while many judgments are cited on ERP, when does the question of citing comes in. the bench asked the Counsel to not state a new ground. To which he replies that ERP question was raised only as to attack the Government order. Once the order goes away, the issue ends. The Bench stated that whatever he wishes, he can give in writing. The Counsel stated that ERP stage does not arise in this particular case as when challenge is made in regards of violation of Article 25, the first question comes is regarding the restriction. He states once there is a valid restriction, it is fine. The second question comes that if the restriction affects the essential religious activity. The counsel submits that the State has not even satisfied the first question in regards.

The Bench questioned that how come wearing Hijab be insisted in educational institution when the uniform is already been given. He mentions that education rules and Act has covered all the same in Article 25 of the same. he states that Article 25(1) is not in the case. The bench states that firstly they are to prove their right. To which, the Counsel states that scrutiny cannot be done and no question can be asked on right. The bench stated that they wish to understand the fundamental right be infringed. The Counsel states that he wishes to state only 25(1). He states that he wishes to point out the same by Constituent debate. He mentions that Article 25(1) on a bare reading include essential and non-essential activities. He states that Hijab is a part of religious practice. The bench questions if he is not on freedom of conscience. He states that he is more into that whether there is a restriction or not. And in addition to which he further states that his right comes from the Quran. He states that if there is no law for social welfare and reform, then can a State make law on the same if there is already the religious practice. The counsel insisted to mention 25(2), to which the Bench states that it is a reformative power given to the State. The Counsel mentioned the case of Bijoy Emanuel and states that same issue was taken up in regards of social welfare and reform. He states that ERP is a restriction on states power. The Bench stated that the restriction cannot be vacuum and since as per petitioners there is no restriction, how can he explain the same in regards of Hijab. The Counsel stated that when he alleges that 25(1) is violated, he is establishing that religious activity is infringed. Now the question is whether there is a law or not. He mentions that at present, there is no law and not even a single judgment on that regards that education act cab be base to put up a restriction on a fundamental right. He states that Act has to say the same before any restriction is placed. He states that restriction has to have direct relation with object it ought to be achieved and it has to be evident from the plain reading. He further requests to cite Constitutional debate. He stated that the shield of uniformity is actually doing what framers did not want to. He mentions debate of Tajammul Hussain. He states that State what exactly is doing by the way of order is not permissible. He further states the concept of constitutional morality and mentions that it is not a restriction on fundamental rights but a restriction on states power. He further stated that even Sabrimala judgment was for choice and not against the same. He said the State was wanting it to go against the jurisprudence by making it against the choice. Even in Turkey Constitution, Hijab was earlier banned, but the same is at present overruled. He stated that while few counsels have mentioned that it is against international practice, it is to be noted that for the rights of children, it is to be decided as to Convention of rights of child and it is expressly ratified by India and various other countries. The bench stated that as far as Hijab is concerned, no body is saying that it is against the practice. The Counsel mentions that it is stated that the practice is rigorous. To which, the Bench corrects him by saying that the same was objected on part of dignity and not in general. He states that the net result of the issue is that people who want head scarfs or turbans are denied by the order and their right to education is put on a back burner. He mentions that as a state, it should have done something to easy go the same.

He mentions that the courts have time and again in cases acknowledged wherein right to education has been read as read to right to life. He requests to mention Surras thereby stating that it is an essential religious practice and also there is no restriction on first place also. He states that has been cited by him which is not a translation but a compilation. The Court questioned the authenticity of the same. The Counsel mentions Surra 24, which has all the authors that the AG has relied upon. He said it was a compendium of translations. The Arabic word is Khimmar, which is like a ghoonghat (veil). He said in Shayara Bano, it is observed already that whatever is in Quran has to be followed. He states Hadit is also the source of law in Islam and it is being observed that Hadit is also equivalent as a source of law. He submits that none of the counsels on other side have disputed the judgments of Kerala high court and Madras high Court which has gone through Islam scriptures and observed that head scarf is religious practice. On the other hand, he states that while he was already stated Indian judgments that say Headscarf is a religious practice. The Counsel in the end mentions quote of BR Ambedkar that said that we may have good constitution but it will be bad if the ones who are there to implement it are not implementing it rightly.

The High Court will resume hearing tomorrow at 2:30 pm. The Court directed everyone to submit their written submissions within 2-3 days. The court further stated that they were to finish the arguments by tomorrow.

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