Updated: February 9, 2022 7:58:05 pm
A single-judge bench of the Karnataka High Court on Wednesday decided to refer a batch of petitions questioning a ban on the use of hijab or headscarf by Muslim girls in a few pre-university colleges in the state to a larger bench of the court on account of the issues raised in the petitions involving larger constitutional issues.
“This court after hearing the matter for some time is of a considered opinion that regard being had to the enormous public importance of the questions involved, the batch of these cases may be heard by a larger Bench if the Honorable Chief Justice decides, in his discretion,” Justice Krishna S Dixit said in his order referring three petitions to a larger bench.
Justice Dixit indicated at the outset, when the hearing began for the second day on the issue on Wednesday afternoon, that he was of the view that the concerns raised on behalf of Muslim girls from a Udupi pre-university college for women and a PU college in Kundapura, Udupi involved issues that must be addressed by a larger bench of the court.
The court initially allowed arguments to be placed for an interim order on allowing Muslim girl students to attend classes for the final two months of the current academic year but later decided to refer the question of interim relief as well to a larger bench since the state government and the advocates for the girls could not arrive at a consensus.
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“Whether wearing of hijab is a part of essential religious practice in Islam, is the jugular vein of all these matters. In support of an affirmative claim, petitioners rely upon three decisions of three neighboring High Courts, (i.e., Bombay, Madras, and Kerala) which the respondent State also seeks to bank upon and several decisions of the apex court. The said question along with others needs to be answered in the light of constitutional guarantees to the religious minorities,” the judge said in his final order to refer the matter to a larger bench.
“Learned advocates appearing for the petitioners made short submissions for the grant of interim relief at the hands of this court. Learned Advocate General and other advocates appearing for the respondents and impleading applicants opposed the same. The contentions are not recorded nor any opinion is expressed since the papers are being placed before Honorable Chief Justice,” the single judge bench noted.
“In the above circumstances, the registry is directed to place the papers immediately at the hands of Honorable Chief Justice for consideration. This court places on record its deep appreciation for the cordiality amongst the advocates appearing for the parties and other members of the Bar who had jam-packed the Court Hall during the hearing of these matters,” Justice Dixit observed.
“All these matters essentially relate to the proscription of the hijab (headscarf) while prescribing the uniform for students who profess the Islamic faith. Rule 11 of the extant rules promulgated under the Karnataka Education Act, 1983 authorises the management of institutions to prescribe uniform, subject to certain conditions. The recent Government Order dated 05.02.2022 which arguably facilitates enforcement of this rule is also challenged,” the court noted in its final order on Wednesday.
During the hearing on Wednesday, senior advocate Sanjay Hegde appearing on behalf of some of the students argued that the Karnataka Education Act does not empower the state government to prescribe uniforms in colleges. Hegde argued that the crux of the issue was about whether the state government has administrative powers to prescribe uniforms.
The state advocate general Prabhuling Navadgi argued that the “petitions were misconceived”. He argued that the government order of February 5 does not prescribe uniforms but leaves it to the discretion of colleges to decide on the uniforms. “Each institution has been given autonomy. Therefore prima facie case is not made out,” he said.
The AG also argued that wearing the hijab does not constitute essential religious practice. He said that allowing the girls to go to college wearing the hijab for two months – until the end of the current academic year as sought by the advocates for the girls – would virtually amount to deciding the matter in favor of the petitioners.
Senior advocate Sajjan Poovayya, who appeared on behalf of the Udupi College Development Council headed by the local BJP MLA, argued that the school uniform had been prescribed in consultation with all stakeholders and that there were no complaints through the current academic year until January.
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