The Supreme Court Monday issued notice to the Karnataka government on a batch of petitions challenging the High Court order that had upheld the state’s ban on wearing hijab in educational institutions. The court also took exception to some of the petitioner parties seeking more time in the matter and scheduled the hearing for September 5.
A bench of Justices Hemant Gupta and Sudhanshu Dhulia told some of these parties, which have challenged the March 15 ruling of the Karnataka High Court, that it will not allow “forum shopping”.
“This is not acceptable. You asked for early hearing time and again… Now it is listed, you ask for (more time). We will not permit forum shopping. That’s all,” Justice Gupta, heading a two-judge bench, said on being told that a letter seeking more time had been circulated.
A counsel appearing for those who have challenged the high court judgment said the matter had been suddenly listed for hearing on Sunday and that other counsel have to travel to Delhi from places like Karnataka. But the bench, also comprising Justice Sudhanshu Dhulia, said Karnataka is only two-and-a-half hours away by flight.
Appearing for the state, Solicitor General Tushar Mehta submitted that Karnataka’s Advocate General had already arrived and also requested that a notice be issued so that one stage will be over.
The petitioners’ counsel then requested the court to grant them two weeks’ time. Mehta then said the petitioners had mentioned the matter six times seeking an urgent hearing.
The counsel for the challenging parties said that was because it was exam time for the students and that they will now have to prepare the brief. Mehta asked if they were planning to argue earlier without preparing.
The court turned down the request for more time and fixed the matter for hearing on September 5, reiterating: “This kind of forum shopping we will not permit”.
A full bench of the Karnataka High Court had on March 15 dismissed a batch of petitions filed by Muslim girls studying in pre-university colleges in Udupi seeking the right to wear the hijab in classrooms. The high court had stated that wearing the hijab is not an essential religious practice in Islam and that the Freedom of Religion under Article 25 of the Constitution is subject to reasonable restriction.
The high court also upheld an order issued on February 5 by the state, which suggested that wearing hijabs can be restricted in government colleges where uniforms are prescribed, and ruled that such curbs under norms for college uniforms are “constitutionally permissible”.
A clutch of petitions and appeals were filed in the Supreme challenging this.
The All India Muslim Personal Law Board (AIMPLB) in its appeal said the HC order “deprives the constitutional rights of Muslim girls to practice Hijab along with the school uniform” and “curtails religious freedom and constitutional rights of Muslim women / girls”.
The Board contended that the HC judgment “presents an erroneous understanding of the Islamic texts particularly the primary and highest source of Islamic law i.e., the Holy Qur’an” and said that “as far as interpretation of scriptures in the holy Quran are concerned there is a consensus amongst religious scholars of all schools of thought namely, Hanafi, Maliki, Shafai and Hambli that practice of Hijab is ‘wajib’ (mandatory), a set of obligations, which if not followed, he/she will commit “sin” or become a “sinner”. Wajib has been kept in the “First Degree” of obedience”.
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The appeal by a student has contended that the order “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”.
Yet another appeal said the HC order had “erred in creating a dichotomy of freedom of religion and freedom of conscience wherein the Court has inferred that those who follow a religion can not have the right to conscience”. It argued that the HC had “failed to note that the Karnataka Education Act, 1983, and the Rules made thereunder, do not provide for any mandatory uniform to be worn by students” and that it does not empower the State Government to prescribe a uniform for the students.