The Chief Justice of Karnataka High Court Wednesday constituted a three-judge bench, including himself, to hear a batch of petitions questioning a ban on the use of hijabs in a few pre-university colleges in the state after a single-judge bench of the court had decided to refer the pleas to a larger bench saying the case involved larger Constitutional issues.
Headed by Chief Justice Ritu Raj Awasthi, the three-judge bench, referred to as a full bench of the High Court, will also include Justice Krishna S Dixit, who referred the matter to a larger bench, and Justice Khazi Jaibunnisa Mohiuddin. Justice Mohiuddin is a woman judge who took oath as an additional judge of the High Court in March last year.
The special bench will hear Thursday a total of five petitions on the hijab row on behalf of 18 girls from colleges in the Udupi region.
Significantly, the constitution of a larger bench is contrary to the Karnataka High Court rules, which prescribe that a reference to a full bench can be made only by a two-judge bench. The larger bench hearing also takes away a layer of intra-court appeal. A ruling by a single-judge bench can be appealed before a two-judge bench of the High Court but a ruling by a full bench can only be challenged before the Supreme Court.
Earlier on Wednesday, the single-judge bench of Justice Dixit, which had started hearing the matter on Tuesday, said in an order: “This court after hearing the matter for some time is of a considered opinion that (given)…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.”
“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 neighbouring 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 religious minorities,” Justice Dixit said in his order.
The single-judge bench initially allowed arguments to be placed for an interim order on allowing the students to attend classes for the final two months of the current academic year. But it later decided to refer the question of interim relief as well to a larger bench since the state government and advocates for the petitioners could not arrive at a consensus.
The decision came after two days of escalating tension and protests across Karnataka over the issue, leading to the arrests of at least 15 persons across the state for “breaching peace and harmony”.
On Wednesday, a day after the state closed all high schools and colleges for three days to defuse the situation, the Bengaluru Police imposed a ban on gatherings and protests around schools and colleges in the city for two weeks.
Prohibitory orders were also in place in parts of Davangere, Shivamogga and Bagalkot where clashes between rival groups were reported on Tuesday. A bandh was observed in the Rabkavi-Banhatti town of Bagalkot where a college teacher was injured in stone-throwing by students on Tuesday.
In the High Court on Wednesday, the single-judge bench of Justice Dixit indicated at the outset that it was of the view that the concerns raised on behalf of Muslim girls from a Udupi pre-university college and a PU college in Udupi’s Kundapura involved issues that must be addressed by a larger bench.
Subsequently, its order noted: “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 authorizes 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.”
Senior advocate Sanjay Hegde, appearing on behalf of some of the students, argued that the Education Act does not empower the state government to prescribe uniforms in colleges. Hegde said 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 said the government order does not prescribe uniforms but leaves it to the discretion of colleges to decide. “Each institution has been given autonomy. Therefore a 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 allowing the girls to go to college wearing the hijab for two months — until the end of the current academic year — would virtually amount to deciding the matter in favour of the petitioners.
Senior advocate Sajjan Poovayya, appearing for the Udupi College Development Council which is headed by the local BJP MLA, argued that the uniform had been prescribed in consultation with all stakeholders and that there were no complaints through the current academic year until January.
Meanwhile, the protests and clashes that were witnessed on Tuesday triggered a political war of words.
State Congress chief D K Shivakumar alleged that a BJP Minister from the Shivamogga region was involved in procuring and distributing saffron shawls and headgear worn by students during protests to oppose the use of hijab. He also asserted that students raised a Hindutva flag at a Shivamogga college on a pole meant to hoist the national flag and the state flag on special occasions.
State Home Minister Araga Jnanendra, who hails from Shivamogga, alleged that “hidden hands” were behind the pro-hijab protests in Udupi. Udupi BJP MLA Udupi Raghupathy Bhat claimed that the girls were “secretly trained by a group to raise the hijab issue since there were no objections earlier”.
Students wearing hijab denied entry to Government PU College in Karnataka's Kundapur on Friday. (File) 
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