The Karnataka High Court on Wednesday resumed hearing on petitions filed by Muslim women, challenging the state government order that banned wearing of Hijab (headscarf) in educational institutions.
The Court, before starting for today, stated that only one Counsel shall argue for one case filed. All the intervention applications so filed by various parties are not important to be discussed.
Senior Advocate Kaleeswaram Raj, appearing for the petitioners, stated that in Sabrimala Judgement, it was cleared that intervention applications can be filed and considered when the issue involves religious issue.
The Court stated that indeed, it can be done, but the same will waste the time of the Court and it is just an idea by the Court and from the perspective of the Bench, they are non-maintainable also. The Court stated that two PILs are also there, which will be heard. The Bench also stated that no repetition of arguments must be done.
Advocate Shadan Farasat, also appearing for the petitioner, requested for intervention applications to be considered by providing only 10-15 minutes for the Counsels to argue on it and put forward their points.
Senior Advocate A.M. Dar stated that let Senior Counsels be considered first. Senior Advocate Ravivarma Kumar also represented the petitioner.
The Counsel requested to look upon the 1995 rules, Page 305 on which the State has relied upon. Rule 11 is read by the Counsel, which provides with power to set a uniform that cannot be changed in less than five years and if any dress is changed, the notice to parents is to be issued, at least one year priorly of any such change.
The Counsel submitted that the state has clearly violated even the rules so stated in the Act they relied upon. The Counsel further submitted that the College committee was not an established body under the Act and rules mentioned therein.
The bench stated that the main issue was whether Hijab should be worn or not and the complete issue should be argued independently.
The Counsel argued that under what authority or rule the petitioners were kept outside the class/school. He questioned the state by way of Bench that which Act/Rule gave them this power.
The Counsel submitted that the state has delegated the power to prescribe the uniform to the College Committee.
The legislature has expressly authorised the delegation of power to the authorities coming to the Act without even realising that the college committee is not an authority sub-ordinate to the government.
The Counsel submitted that this clearly shows that no delegation could have been done by the State but then also, the State delegated its powers.
The Counsel submitted that the Committee has no power to prescribe the dress/uniform as per the powers confined in the hands of the Committee.
Secondly, the Counsel stated that under Section 143, as the Committee is not an authority, no power can even be delegated so prima facie, the same was wrong.
The Counsel stated that in 2015, the government formed a committee under chairmanship of MLA. The Court put a stay on it, even though the State challenged the same, the Court upheld the stay.
He submitted that if today this committee is not looked upon and stay is made on the decisions so decided by the Committee, it will be a deadlock to the democracy of the country. The Counsel also mentioned the doctrine of suppression of law thereby stating that this committee can not exercise powers as it will be deadlock to the democracy if no action is taken by your lords.
The Counsel stated that other thing he wishes to stress about is that in South India, religious symbols are very fond of. And there, the extent to which these symbols were in question.
There was an elephant temple and the question remained the extent to which the symbols were to be allowed. In that, the verdict came that for 6 months you go for one eye, the other 6 months to other way. The Bench stated that the same cannot be held here in and cannot be stated, to which the Counsel agreed.
The Counsel urged the High Court to look into the research paper submitted by him. The Counsel stated that an exhaustive survey has been conveyed on religious symbols and appearances, clothing, jewellery, etc.
The body of the paper is being referred. 52% of Hindus, 50% of Muslims, 61% of Christians, and majority of Sikhs, etc wear something or the other in the form of bangles, beard, turbans (69%), scarf, etc to represent and show faith in their religion. It is also mentioned that most of Hindu women, Muslim women and Christian women cover their head outside their home and it is a common practise. The Bench questioned the authenticity of the paper. It is stated that the apex court stated to always mention the authenticity of the paper. The Counsel submits that he is not mentioning the same, it is only to put light and show the diversity of the culture and religion. It is submitted that why only Hijab is considered when people do wear bangles also. The Counsel requested to take judicial notice to the fact that there are several symbols in each religion, there is diversity in the society, then why only Hijab is considered, if it is not to target the religion then what is the possible reason for the same. The Counsel submitted than why is the reason that only the Muslim girl’s hijab is being disturbing for the government and not anything else that represents the religion.
It is submitted that even every Christian carries a pendant in their neck, the Hindus carry Bindi, but nothing is done to them. The Counsel states that why Ghunghat is allowed and not Hijab; why bangles are allowed and not Hijab, why pendants are allowed for Christians and not hijabs, why turbans of Sikhs and not the Hijabs. This establishes the fact that the government is purposely targeting 1 single religion. The Counsel mentions the electoral constituencies case wherein the elections were held earlier on the basis of the religion by separate religious electoral constituencies and the Court stood against for it. Hence, the Counsel submits that this applies here to the case as well when the Government is intentionally targeting 1 religion. The Counsel submits that the notification by the committee is directly violating the Article 15(1) of the Constitution as no other religious symbol is targeted but only the Hijab is targeted. The discrimination against the muslim girls is purely based upon their religion. The Bench asked if there is any girl suffering from some serious disease from other religion, in order to cover the same wears head gear to school/college, she will also not be allowed. The Counsel submitted that she shall apply for exemption and she will be allowed, but the muslim girls are not, rather they are directly punished, not allowed to enter and humiliated for their religious symbol.
The Counsel submits that the whole reason for this is not to prepare and go for uniformity, even in Nalsa case, KS puttswamy case, the Court has time and again appreciated and accepted the diversity of the religions. He submits that this is not a case to have uniformity. The Counsel submitted that if people wearing turban can be in army, then why a muslim girl wearing hijab are not permitted to enter school/college to get access to education.
Senior Advocate Yusuf Muchhala submitted for the petitioners that the particular impugned order suffers from manifestly arbitrary. He stated the case of Shayara Bano for the point of manifestly arbitrary order by the College Committee. The Counsel referred Page 95 of the judgement to discuss the term manifest arbitrary in details.
The Bench stated that the same is a ground for striking down preliminary legislation and thus no details are to be needed and the Counsel can stick to the point and prove his contention in that direction only. The Counsel again stated that notice shall have given 1 year priorly but the Court interrupted by stating that that is for changing and not prescribing. The Counsel states that the girls are wearing it since the 1 day, the bench questions if that was a part of uniform or not. The Counsel states that a single colour can be given to the girls to wear the Hijab of that colour only. Why is it bothering the Committee so much? There has to be some flexible approach and not that rigid. The Counsel submits that on the ground of fairness, at least the notice should have been served, the parents could have been heard, but the Committee acting unilaterally and discriminated with muslim girls. Also, on the ground of fairness, a parents-teachers meeting should have been conducted. The issues could have been at least discussed before discriminating in a way where the girls were just not allowed to enter the class. The Counsel submitted that everything can be sorted after having word with. But the college committee did not have a word with the parents. The Counsel submits, as per the State, that the same is done by the opposition of some other students, but this is completely manifest and should be set aside. The Counsels submits that Article 25 deals with individuals’ choice of profess the religion. The question can not be made that whether it is integral or not, it is the faith and believe that is considered. The Counsel questions the bench that why the muslim girls are being made to select on option for either having an education or to have faith in their religion. Why are they not allowed to have both of it simultaneously as a right?
The Counsel also mentioned the doctrine of proportionality that has been completely ignored by the state. The Court directed to submit written submissions in that regard and not to argue on this herein as it is already being argued by Senior Advocate Devadatt Kamat.
The Court submitted that no interim applications are disposed off as of now. The matter is again listed for tomorrow at 2:30 pm.