Hearing concludes, Karnataka high court reserves verdict on hijab row
The bench, also comprising justice Krishna S Dixit and justice JM Khazi, also asked the petitioners to file written submissions, if any, before it.
The Karnataka high court on Friday concluded its hearing on various petitions challenging the ban on the hijab in educational institutions in the state after 11 days of arguments, and reserved its order on the matter.
“Heard. Order reserved,” the three-judge bench, headed by chief justice Ritu Raj Awasthi, said. The bench, also comprising justice Krishna S Dixit and justice JM Khazi, also asked the petitioners to file written submissions, if any, before it.
It further dismissed an application alleging a conspiracy behind the row and seeking a probe by the Central Bureau of Investigation (CBI) and National Investigation Agency (NIA) into various agitations.
The bench, constituted on February 9, heard on a day-to-day basis over the last two weeks a batch of petitions filed by some girls seeking permission to wear the hijab in educational institutions. The girls were denied entry into a pre-university government college for girls in Udupi on December 28 for wearing the headscarf.
What began with two colleges in the coastal districts of Udupi and Mangaluru snowballed into a statewide row last month after more institutions announced a ban on the hijab, Hindu groups mobilised groups of men wearing saffron shawls to oppose the entry of women in hijab in schools and colleges, isolated clashes broke out in Shivamogga, and the state government issued a controversial order on February 5 that said students will not be allowed to attend classes with Hijab.
On February 10, the high court issued an interim order that said students should not wear any religious attire to classes till the end of the hearing. On February 23, it clarified the order and said it is applicable to all degree and PU colleges having a dress code.
Appearing for petitioner Ghanshyam Upadhyaya, advocate Subhah Jha on Friday alleged that the agitation by a section of students were instigated by organisations such as the Popular Front of India (PFI) and its student wing, CFI.
Taking note of the plea, the chief justice said, “Do you have any material showing extraneous elements, then we can consider? So far as religious issues are concerned, we have heard others.”
“An agitation of this magnitude cannot be orchestrated overnight. This cannot turn out of the blue. There are photographs showing the girls were not wearing the hijab earlier. Suddenly, petitions are being filed one after another, senior lawyers across the country are engaged,” Jha said in response.
“Have you tried to collect any material to show that there are some organisations or some people, behind these agitations? Do you have any material to show that?” the bench asked.
While Jha tried to draw a link between the recent murder of a Bajrang Dal member in Shivamogga district and the CFI, the bench said that a probe into the case was underway.
“We can’t draw presumptions till the police come out with a report,” the bench said.
“The government is taking care of law and order and wherever there is a problem they are taking action. We can’t draw a conclusion that this matter needs to be entrusted to the CBI or NIA (expansions) for investigation,” the bench added.
During the hearing, the counsel for one of the petitioners, advocate Mohammad Tahir, also opposed the constitution of the College Development Committees (CDCs), which has been directed by the government to decide on the dress code in colleges. Tahir pointed out that neither the AG nor any other lawyers have produced any document showing the powers and functions of CDCs.
Senior advocate Ravi Varma Kumar also took objection to the structure of the CDCs, saying the president of the panel is a local MLA and of the 12 members, 11 were nominated by the said MLA. “This is absolute power given to the MLA. The college is given over on a platter to him. The issue of entrusting a legislative member with executive power is not accepted. He is a political man,” he said.
“Kindly test the validity of this exercise on a test laid down by the Supreme Court. There is no control over the MLA, he acts like a monarch in the college. Can the principal question him? The MLA should be held accountable,” he added.
The exchange capped judicial proceedings that have held the interest of the nation over the past week. The arguments in the case, crucial to what has turned into a larger debate around the display of religious identity in educational institutes and the treatment of minorities in the state, were largely centred on Article 25 of the Indian Constitution.
During the course of the hearing, the female students argued that wearing the hijab is an essential religious practice under Islam and the suspension of the same, even for a few hours during school, undermines the community’s faith and violates their fundamental rights under Articles 19 and 25 of the Constitution.
Appearing for the petitioners, lawyer Devdatt Kamat cited several judgements from other countries, including South Africa and Canada, to make his point and also cited the case of Sonali Pillai, who challenged her school’s order in court when she was restricted from wearing a nose ring. Kamat said Pillai won the case in South Africa.
Seeking the right to wear the traditional headscarf, Kamat said wearing a hijab is an innocent practice of faith and not a display of religious jingoism.
Advocate Kumar said the discrimination against Muslim girls is purely based on religion as Hindu girls wearing bangles and Christian girls wearing cross were not sent out of educational institutes.The petitioners claimed that hijab is an essential part of Islam and public order will not be disturbed merely because a Muslim girl wears the hijab.
The state government, however, argued that the petitioners were seeking to declare the hijab as an ‘essential religious practice’, which will bind every Muslim woman to follow a particular dress code. Advocate General (AG) Prabhuling Navadgi went on to argue that the petitioners did not place any material on record to substantiate their claim for a declaration that wearing a hijab is an essential religious practice.
As protests for and against the hijab intensified in different parts and turned violent in some places, the government declared a holiday for all high schools and colleges in the state for three days, from February 9, and it was subsequently extended up to February 16 for colleges.
In its interim order, the bench asked the government to re-open educational institutions hit by the agitation and restrained students from wearing religious attire till the court issues the final order.