Friday, August 19, 2022

Hijab petitioners move Supreme Court after Karnataka High Court order

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After failing to get a favourable response from the Karnataka High Court on wearing of hijab in government schools and colleges, a Muslim girl on Tuesday knocked on the doors of the Supreme Court.

Filed by Niba Naaz, a student from Karnataka through Advocate Anas Tanwir, the Special Leave Petition contended that the High Court

“failed to note that the right to wear a Hijab comes under the ambit of ‘expression’ and is thus protected under Article 19(1)(a) of the Constitution.”

It also contended that the High Court failed to take note of the fact that the right to wear Hijab comes under the ambit of the right to privacy under Article 21 of the Constitution.

With regard to uniform, the plea said that the Karnataka Education Act, 1983, and the Rules made under the same, do not provide for any mandatory uniform to be worn by students.

“A perusal of the scheme of the Act reveals that it aims to regulate the institutions, rather than the students. Sections 3 and 7 of the said Act provide the State Government with the powers to inter alia regulate education, curriculum of study, medium of instruction, etc. However, neither of these provisions empowers the State Government to prescribe a uniform for the students”

-the petition said.

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It further said that there was no provision in the Act or the rules allowing the formation of a ‘college development committee’.

Such a committee, even if formed, has no powers to regulate the wearing of a uniform, or any other matter in an educational institution, added the petition.

Meanwhile, Hindu Sena vice-president Surjit Singh Yadav filed a caveat in the matter before the Supreme Court.

The plea filed by Yadav said that the Indian society comprises multi-religious people, and members of each community are under the constitutional obligation to maintain peace and public order.

Earlier in the day, the Karnataka High Court had put the ball in the court of education institutes, stating that since hijab is not an essential part of Islam, it is the discretion of these institutes to decided on the dress code, and that the government has the power to issue an order, so no case is made out for disciplinary action against it.

The full Bench, headed by Chief Justice Rituraj Awasthi and also comprising Justice Krishna S. Dixit and Justice J.M. Khazi, delivered its verdict on a batch of petitions filed by Muslim girls, challenging the Karnataka government order against wearing of hijab to education institutes.

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The Court said the questions which have been formulated, include whether wearing Hijab/scarf is a part of essential religious practice in Islamic faith protected under Article 25 of the Constitution.

The second question is whether the description of School uniform is not legally permissible as being violative of fundamental rights guaranteed under article 19 (1)(a) that is freedom of expression and article 21 that is privacy of the constitution the question is whether the government order dated 5.2.2022 apart from being incompetent is issued without application of mind and further is manifestly arbitrary and therefore violates article 14 and 15 of the constitution. Question is whether any case is made out in writ petition number 2146 of 2022 for issuance of a direction for initiating disciplinary enquiry against respondent number 6 to 14 and for issuance of a writ of quo warranto against the respondent number 15 and 16.
The answer to first question is we are of considered opinion that wearing off by Muslim women does not form a part of essential religious practice in Islamic religion.

The answer to our second question is we are of the considered opinion that the prescription of a school uniform is only a reasonable restriction allowed under constitutional reforms which the students can not object.

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To answer the third question, we are of the considered opinion that the government has power to issue the impugned government order dated February 5, 2022 and no case is made out for its in validation. No case is made out in writ petition number 2146 of 2022 for issuance of direction for initiating disciplinary enquiry against respondents. The prayer for issuance of writ of quo warranto against respond a number 15 and 16 is rejected being not maintainable accordingly in the above circumstances all this writ petitions being provided of merits are liable to be an accordingly dismissed in which of definition of these traditions of the pending applications pale into insignificance and accordingly, it is disposed off, the High Court held today.

“The Indian society is a society of multi religious people and therefore, members of each community are under constitutional obligation to maintain tranquility and public order. The dress code prescribed by the educational institutions are with basic idea or motto to uphold the secularism of Indian Constitution. Therefore, it is duty of each and every citizen of India to uphold the secularism as per provision of the constitution.”

The applicant further mentioned,

“Wearing Hijab or Bhagwa gives colour to religious importance. It is contrary to the Constitution of India and therefore, educational institutions are within their powers to ban any dress which represent any religion in educational institution.”

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The applicant stated that, the liberty and freedom of religion under Article 21 and 25 respectively of Indian Constitution protect the legitimate right of an individual from conversion of religion by coercion, fraud and allurement. The same cannot be termed as claim of legitimate right of freedom or liberty under Part III of the Constitution, it added.



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