Karnataka High Court judge Krishna Dixit, who was hearing pleas challenging the constitutionality of the ban on hijab in classrooms has referred the matter to a larger bench. "All these matters do give rise to certain constitutional questions of seminal importance in the light of some aspect of personal law," the judge said after hearing counsels in detail.
"Having regard to the enormity of questions of importance which are debated, the court is of the considered opinion that the papers be put at the hand of the Chief Justice (CJ) to decide if a larger bench can be constituted in the subject matter," Justice Dixit observed. The judge said interim relief, if any, would also be decided by the CJ-appointed bench.
"Even interim prayers merit consideration at the hands of a larger bench that may be constituted by the Chief Justice in his discretion and therefore the arguments advanced on interim prayers are reproduced here...It is open for the petitioners to seek interim relief after a decision is taken by CJ regarding the constitution of the larger bench," the judge said dictating the order in open court.
Justice Dixit's decision came after observing that judgments from the Kerala and Madras High Court needed to be taken into account. A 2016 Kerala High Court judgment had permitted two Muslim girls to wear a hijab while appearing for the All-India Pre-Medical Entrance Test (AIPMT) after ruling that hijab is an essential religious practice of Islam and women had a right to dress in accordance with their religious faith.
Similarly, the Madras High Court in 2006 had observed that there is almost unanimity amongst Muslim scholars that purdah is not essential but covering of head by scarf is obligatory.
Counsels for all stakeholders – Muslim students, the state and the College Development Committee (CDC), opposed Justice Dixit's proposal to refer the matter to a larger bench and sought a speedy resolution of the matter.
BOOM recaps the arguments made in court today.
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The State does not have the power to prescribe a uniform: Plea to HC
Senior advocate Sanjay Hegde, who was representing some Muslim students, submitted whether the state had the power to prescribe a uniform and whether it has been properly prescribed?
"Today is it important that there is peace, constitutional fraternity returns to the college... I only say let the children get back to school and things calm down," Hedge said.
"There is nothing in Karnataka Education Act which deals with uniforms. I went up and down I did not find anything," Hegde added. "The rules do not even prescribe a penalty for not wearing a uniform. There is nothing that says keep the students out (of classes). The children here are wearing a uniform, but this is not a question of uniform. It is a question of the manner in which one part of the uniform is worn," Hegde said.
"A teenage girl should not be forced to settle with her conscience for the sake of her education. Let them have the darshan of their teachers," the advocate submitted.
Senior advocate Devdatt Kamat, who made his submissions yesterday for another group of students, said that the state government's stand—that it does not prescribe any uniforms and the same is decided by educational institutions—has made it worse for itself. "The state says it has not prohibited anything. This is worse. If the state says it has not decided, then we are at the mercy of some committee," Kamat interjected.
"My interim prayer is that leave aside the challenge to the government order (GO). Please permit me to go to the school wearing my clothes, don't leave it to the mercy of some principal or College Development Committee (CDC)," he added.
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Educational institutions have autonomy, state doesn't take decisions: Karnataka to HC
Advocate General PK Navadgi said the petitions challenging the hijab ban were "misconceived". "They have questioned the February 5 Government Order. Each institution has been given autonomy. The state does not make a decision. Therefore, prima facie case is not made out," the AG said.
"There are large judgements which say that hijab does not form an integral part of the religious practice. The test that if they don't practice the religion itself goes," he added.
"Children must attend the class adhering to the dress code prescribed by the college," the AG submitted.
Referring to the 2016 Kerala high court judgment which said that wearing a hijab was an essential religious practice, Navadgi said that even in the verdict, the judge had accepted that there could be different points of view. The AG also referred to the Supreme Court's Shayara Bano judgment which said that the Hadith must be considered as a secondary source.
"Interim order at this stage will be amounting to allowing the petition", AG said opposing plea for interim relief.
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Order on uniforms is not new: CDC to HC
Senior advocate Sajan Poovayya, who was representing the College development Committee which runs the Women's Government Pre-University College, said that the prescription of a uniform has been there for the past year. "Nobody complained earlier now it is raised," Poovayyah said.
The CDC has met every year and all stakeholders have been consulted before the decision was passed," he added. "Today it is said the state has made it worse, but the state has not made it worse. Even for the present academic year, the decision of CDC of the uniform policy is followed," he added. aa