Tuesday, March 28, 2023

Karnataka High Court expresses resentment over media speculating order by this week on hijab matter

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Starting with the hearing on Wednesday, the Karnataka High Court asked why the media has mentioned that the judgment in the case will be delivered this week.

The Full Bench comprising Chief Justice Rituraj Awasthi, Justice J.M. Khazi and Justice Krishna M. Dixit clarified that no such announcement is made as the submissions have not been heard till now. 

Senior Advocate S.S. Nagananda appeared for respondents 5 to 7.
The Counsel submits that he would like to mention some facts that the pleading is extremely vague.

He states that Aadhaar card of one of the petitioners is shown wherein the girl is not wearing hijab. Likewise, a few petitioners are shown who are not wearing hijab in the Aadhar card photo. He also stated that it is not to question the belief but as to the fact that petitioners are not wearing Hijab always in public. He submits that there are instances when the petitioners are 
not wearing hijab in public. Also, while various representations are made, the same are vague as no mentioning of dates are mentioned. It shows that only complaint is made, representations are made, without any subsequent issue. The Counsel mentions that it was decided to make uniform compulsory in 2004. He states that the same uniform was since 2004 and no student had any issue. No complaints and representations were made. But, now all of a sudden that the issue is being put forward and false allegations under the shield of religion are made. He mentions that educational institutions are to maintain peace and harmony. It was only in December 2021 when the girls made an issue out of it. Then after, parents were called and discussions happened.
While the girls were told that they must not insist on such issue in the educational premises, the girls started protesting and harshly violated the rules and regulations of the school/college.

He submitted that it was after the harsh protests that Campus Front of India (CFI) helped to control the issue. CFI is basically a student organization and does not represent any school/college/girls or anyone. 
He submits that earlier petitioners were not wearing the Hijabs but all of a sudden, the girls started wearing the hijab and it seems like all of this is controlled and organized by some organization outside the college. He submits that threats are given and in pursuance to those complaints are lodged against one of the teachers in last couple of days. He states that allegations by these students are false. They are just alleged that the girls are threatened to mark them absent. The Counsel submits that there is no threat as to attendance. As if the girls are protesting, they are not attending lectures, how can attendance be provided? The Counsel mentions that even it is stated that internal marks are brought in. He states that allegation states that since September 2021 they were facing discrimination by making them stand outside the class. The Counsel states that the allegations again are false as when in December representations are made, why the same is stated at that time and not back in September itself. He questioned what did the girls wait for if they were actually being humiliated, discriminated or what not? 

The Counsel mentioned that there is only 1 affidavit filed by the mother of Petitioner No. 1 (Ayesha) who has complained but the Aadhar Card shows that the girl became major by the time complaint was lodged. And, no other petitioner has filed affidavit. He states that the complaints and petitions are not even accompanied by proper affidavits. The Counsel mentions that by the factual matrix, it is important to note that the valuable time of the Court is being wasted by these false complaints. He states that the main issue is uniform is violative of as per Article 25. He states government has not taken any decision. It is the institution who took decision and that too not now, but back in 2004. It is only the issue being raised now after there was some disagreements and pressure from the groups outside the school/college. 
The Counsel states that let say there is child of 10 years old at home who misbehaves, while parents ask to keep him quiet, but not understanding, if the child still misbehaves, he might get a slap. He states that this is not violence but child welfare. He relates the same with the classroom atmosphere where the teacher also first gives the warning and then applies the force. And all this is done in furtherance to maintain discipline and to provide with values.
Thus, the authority and teachers are to maintain discipline amongst the students. Hence, teachers can apply quasi-parental authority to control the child. The Counsel submits that even in religions there are bar on wearing stitched clothes. He submits what if next the girls or boys come forward that they shall only wrap the cloth and not wear shirts and pants in way of following religion. He states that the college committee or body is acting on behalf of the college only. He states that even if MLA is there or not, it is not important. Political thinking can be there but on the board of meeting, there is no such thing, at that place there is different place. He mentions that even the judges don’t act like one all the time even when not taking judicial decision. 

Justice Dixit questioned that where is the legal authorization to induct MLAs in the Act?

To this, the Counsel and even the CJI states that the same has not been challenged and shouldn’t be answered. He states that even in the case where loudspeakers were in question in relation the Azaan, the Court has held that that Article 25 cannot be taken as a back to violate Article 19 of others. Also, the Kirpan for the Sikhs is being referred. The abolition of Sati and having more than 1 spouse in Hindus is also being referred making it to a view that just to exercise your right, the same cannot be done by violating rights of larger section or by creating disbalances for the larger section of the society. Thus, a sharp distinction should be drawn between religious practices and the rights. He submits that freedom is never absolute. 

Having regarded the observation, he states that Court has earlier considered censorship in US Court wherein it was held that it will be seen that freedoms are confined in absolute terms and subject to restrictions. In such case, exceptions are to be seen. Similarly, herein the fundamental rights are to be seen in view of reasonable restrictions/regulations. Thus, if one views the same in that regards, no conflict would arise. Hence, censorship was made absolute therein. The Bench mocks that in US they didn’t have BN Rao in drafting constitution while Indians had, to which Counsel agrees. 
He submits the subject of international approach in the issue. He states the case of Bijoy Emanual wherein the judgment was not disputed by anybody. In that particular case, the essential religious part was in question and thus the Court acted the way it did. But herein, the same is not the situation as many countries have already put up a ban on the same. But for instance, India or the Karnataka, to be precise, did not put a ban. It is only that the same is not allowed in educational institutions. He submits that the two categories of Muslims have different customs. You may follow a particular religion, but the customs of other religions can also be incorporated in your religion. He states one of the judgments, relating to Mangalsutra, of 1922 judgment by a division bench of Bombay Court. He states that by virtue of practice of certain practices, the Court has held time and again that some Muslim laws does not apply to them, rather some portion of Hindu laws have started applying. He concludes that let the drum beaters on road not attack or harm the society. He states that it has to be taught that the students must not make any distinction in regards of religion, race, sex, etc. He states that even the section of Hindus has started asking for saffron scarfs, Muslim boys can argue for their religious caps. He states that the same has to be dismissed on this particular reason. 

Senior Advocate Raghavendra Srivastava for respondent no 7, along with Senior Advocate S.S. Naganand.
He submits that Page 12 of the note shows that width of freedom of religion differs from country to country. He reads the same, to which the Bench states that they shall read the same on their own. While he insisted to read some portion of the same, he relates it with US constitution. The Bench disagrees and states that the same is not be discussed, the same will be considered by the Court by a way of submissions. The bench makes it clear that they shall stick only to the Constitutional rights. He mentions that Article 25 starts with restrictive language of “subject to’. He states that in the present case secular educational institutions are being in subject to question. 

Senior Advocate Sajan Poovayya for respondents no. 15 and 16 (College Development Committee and Vice-Chairperson) stated that he shall cover only those aspects that are not been covered. He requests the Court to look into the notes submitted by him. He states that since the petitioners have alleged that the order is highly motivated by political party, the Counsel mentions that the institutions that are funded by State are being into the picture and not the political agenda. He submits that the Committee is presided by the MLA which may or maybe not the part of the party. He states that when MLA sits as a committee head, he does not sit as a member of any of the party. He mentions the division of the committee on the basis of selection of the members. He states that why the members of committee are not challenged and only the seat of the MLA is in question. He further states that it seems more like an overnight drafting a petition to challenge the action for the sake of challenging. He submits that it is a vague try to make out a case on Article 25, and Article 19 and 21 in terms of privacy of an individual. He mentions Article 39(f) in regards of dignity and child protection. He mentions that freedom of conscience is not what the petitioners have tried to put on, it is more of the people are free to be atheist, priest, or what so ever. He mentions that practice is different from freedom. He also mentions Article 28 in relation to education institutions funded by state.

He states that even when the hijab is not an essential religious activity, the petitioners, by failing miserably, have tried to make a case out of it. He mentions the case of Bijoy Emanuel by stating that unless you have a law, no restriction can be place on an individual in regards of fundamental rights. Thereby, the Counsel states to get away from the same and focus on the present case. He states that institution in the present case have the legitimate aim to maintain peace, harmony and discipline in the premises. He states that they are reaching to a stage to have uniform that is gender neutral. He states out of 956 students in his school, 100 belongs to muslim. He states that out of these 100, no one ever insisted for hijab till December. He states that these 5 after the incident have started with the same and disturbed the the discipline of the school. He submits that most and majority of the students are minor in the school. The decision should be left on them when they become major. And till then, the school must be left with the decision to provide them with best of education, values and beliefs. He also mentions the case of S.R. Bommai. The bench questions whether the institution is all girls or co-ed. The Counsel mentions that the institute is all girl schools/college. The counsel also mentions the preamble of the Karnataka Act, i.e., secularism. He submits that in the widest connotation of the Constitution, religion is irrelevant. He mentions Sabrimala judgment in regards to maintain public order and uniformity. He further mentions the concept of constitutional injunction with regards of secularism and questioning the bench that if all religions shall be allowed to wear the attires of their religions in name of practicing religion.  He further states that Article 25(1) and 25(2) of the Indian Constitution is actually the Article 9 of the European convection. He states that Turkey, even being a muslim majority country but a secular one, did not allow even the major girl to wear Hijab. 

The Counsel mentions the sayings and observation of Justice Dipak Misra in Sabrimala Judgment. He questions the bench that if the teachers/students are not wearing the Hijab, are they not followers of Islam? Or to the matter if Hindus don’t wear saffron attire while they go out to pray, are they not following their religion? He states that there has to be full freedom to men and women to choose what they wish to wear and not what others want them to wear. Hence, minor child must not be forced to wear Hijab. Let them make their decisions themselves when they become major. He also mentioned the case of Shayara Bano in that regards. He states that everything in the Quran cannot be made as essential religious activity. If one thing has to be included, it should have to be proved by the person claiming it. 

The Court further directed all the intervenors to make written submission directly as no submissions shall be recorded in oral platform. It is stated that the bench shall not be sitting on daily basis. It is a special bench which should be respected in that regards and the Counsels shall make sure that they provide their submissions as concise as possible.  

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