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Hijab controversy: Let Karnataka High Court hear the matter, we will list it later: Supreme Court to Kapil Sibal

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The Supreme Court on Thursday refused to interfere on the issue of wearing hijab (headscarf) by Muslim women, stating that the matter was already pending before the Karnataka High Court.

Senior Advocate Kapil Sibal mentioned the matter before a Bench led by Chief Justice N.V. Ramana.

Sibal: It’s spreading in the entire country now.

CJI: Let the High Court hear the matter. Today, it’s listed before the 3-Judge Bench.

Sibal: The exams are two months away.
We have filed a petition this morning. This matter has to go before a nine-judge bench.

CJI: This is too early for us to take up at this stage. Let’s see some interim relief the HC may give.

Sibal: This issue needs to be considered.

CJI: If we list the matter, HC won’t hear the matter.

Sibal: Schools and colleges are closed. Girls are being stoned. This issue must be considered.

CJI: Let the HC hear it first.

Sibal: I’m asking this court to list it. If the HC doesn’t pass orders, this court can transfer it to itself and hear it.

CJI: We will see.

In Bengaluru, the matter has been listed before the Karnataka High Court full Bench, led by Chief Justice Ritu Raj Awasthi, and also comprising Justice Krishna S. Dixit, and Justice J. M. Khazi, at 3 pm today.

On Wednesday, the single-judge Bench of Justice Krishna S. Dixit had referred to a larger bench, a batch of petitions filed by Muslim girl students, claiming that they were not being allowed to enter colleges on account of a government order that banned the wearing of hijab.

The Bench had observed that the matter required consideration of a larger bench, in view of the related verdicts given by the neighbouring High Courts.

Senior Advocate Sanjay Hegde, appearing for one of the petitioners, urged the Court to grant the students interim relief while the matter is referred to a larger bench.

“They have only two months (of the academic year) left. Do not exclude them…we need to find a a way that no girl child is deprived of education…Today what is absolutely important is that peace comes, Constitutional fraternity returns to the college. No heavens will fall for two months…”

Appearing for a college development committee, Senior Advocate Sajan Poovayya, however, contended that the questions raised in the writ petitions are squarely falling under Justice Dixit’s roster. Therefore, he urged the Court to decide the matter after hearing the parties.

Advocate General Prabhuling Navadgi opposed the grant of interim relief. He submitted, “My submission is that my learned friend (Senior Advocate Devadatt Kamat) has completed his arguments. Now, it is for State to argue and then it is for the Court to adjudicate…I wanted to say the petitions are misconceived. They have questioned the GO. Each institution has been given autonomy. State does not take a decision.”

During yesterday’s hearing, Kamat appeared for one of the petitioners. His submissions were as follows:

  • Wearing of head scarf (not burqa or veil) is an essential part of Islamic religion;
  • Wearing of hijab is protected by right to expression under Article 19(1)(a) and can be restricted only on grounds under Article 19(6);
  • Wearing hijab is a facet of the right to privacy recognised as part of Article 21 by Puttaswamy judgment of Supreme Court;
  • Government order is outside the scope of the Karnataka Education Rules and State has no jurisdiction to issue the same.

In view of the facts that exams are approaching, and that the petitioners have been exercising their right to wear hijab for the last two years, Kamat prayed that they be granted interim relief by being allowed to attend classes for now.

The Court eventually appealed to the student community and the public at large to maintain peace and tranquility in the wake of protests against the government order.

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