The Karnataka High Court on Friday reserved its judgement on the petitions filed by Muslim girls against the Karnataka government order restraining them from wearing hijab to education institutes.
The Full Bench comprising Chief Justice Ritu Raj Awasthi, Justice J.M. Khazi, Justice Krishna M. Dixit reserved verdict, after conducted hearing daily on 11 days.
On Thursday, the High Court had asked the Counsels in the case to wind up their arguments by Friday, as it would deliver the order shortly.
The Chief Justice also asked the parties to give their written submissions within two to three days.
On January 1, six girl students of a college in Udupi had attended a press conference held the by Campus Front of India (CFI) in the coastal town, protesting against the college authorities denying them entry into classrooms wearing hijab.
This was four days after they requested the Principal to allow them to wear hijab in classes. Till then, the students used to wear the headscarf to the campus, but entered the classroom after removing it, College Principal Rudre Gowda had said.
“The institution did not have any rule on hijab-wearing since no one used to wear it to the classroom in the last 35 years. The students who came with the demand, had the backing of outside forces,” Gowda had said.
The Karnataka government submitted details of CFI in the High Court. PU College, which has become the epicentre of hijab controversy in the state, on Monday told the High Court that CFI was a radical organisation that was spearheading the row.
Counsel for the PU College, Senior Advocate S.S. Naganand, said that the uniform was made compulsory by the college in 2004 and there had been no issue until the CFI met some students, who wanted to wear hijab to college.
The state government on Thursday informed the High Court that a first information report (FIR) has been registered against the members of CFI, who had allegedly threatened some teachers in the Government Pre-University Girls College in Udupi district.
As soon as the proceedings began, state Advocate General Prabhuling Navadgi told the full bench of the High Court that an FIR has been registered.
He also said that he has furnished details relating to the CFI in a sealed cover to the bench.
On Wednesday, the court had sought to know from the state government the role of CFI.
Following submissions were made today:
Senior Advocate Yusuf Muchhala for petitioner mentioned that he is in petition 3038 and stated that he has right to rejoinder. He states that the fresh matters can be taken later and let the rejoinder be heard first. The Counsel mentioned that he may start if he wishes to. Starting with the same, the Counsel stated that so far as his petitioners are concerned, his reliefs are writ to quash the
government order and allow petitioner to wear the scarf. He states that they haven’t asked for any general relief or declaration. He states that they are wearing this head scarf without covering the face which should be permitted as it is not right for the college authority to prevent them from the same. He states that as per Article 19 and 25(1), the essential religious practice cannot be pointed as it is more about free conscience. He states that ERP is not necessary in so far as considering his claim. He states that even if conclusion comes that ERP is to be considered, he states he support Advocate Kaamat on the take and would like to draw attention towards statement of objections by the State. He submits that Islam’s true tradition includes veil and even State’s objections admit the same. He states that exactly is what his clients are wanting that they should be allowed
veil, they are not requesting for full coverage of body. He states that even the prophet has mentioned that once a girl start going through menstrual age, veil is important. No wonder covering face is not very important, but a few parts are to be covered. He states that details should not be gone into while talking about hijab, khimar, etc. The context of the same has to be understood in that regards and a common-sense view has to be taken in. he mentions Farooqi case, it was stated that Namaz is not an essential activity and can be done at home also, masjid is not necessary. But, in Babri Masjid case, it was stated that such areas must not be touched by the Courts and it has to be considered in the view of faith and believe of the worshippers because a true muslim would not be practicing it at home. He mentions that here also, the Hijab is more in regards of faith and believe of his petitioners that they should be allowed to what they choose to wear. He states that as AG stated that everything in Quran is not religious practice, he wished to mention the same. The Bench interrupted stated to mention his submission in short note that why decisions do/do not support the case. The Counsel mentions Shayara Banocase, to which the Bench states that cases have been taken into consideration. He insists to mention Para 54 of the case and reads out the same and concludes his submission.
Senior Advocate Ravivarma Kumar for petitioner mentions that as AG said in regards of delegating the power, to which the Bench interrupted and said that he can argue on something else as the bench is already not convinced by their argument on this particular issue. He states that removal of difficulty clause shall have no application as per the case of Mahadeva Upendra Sinai Etc. vs Union of India and Gammon India vs. Union of India. He states that composition of the Committee has to be seen wherein President shall be the Local MLA, nominee is the representative of local MLA, Vice-president shall be representative of MLA, student’s nominee shall also be appointed by MLA, likewise all members are elected and appointed by MLA. he states that out of 12 members, 11 are nominated by MLA. He states that extreme and absolute powers are given to the MLA. He states that issue of interesting the elected legislature with an executive power or function is no longer raised in. He states the case of Bhim Singh vs. Union of India in regards of this power and administrative power. He states that separation of power is essential feature. He states that there is no accountability for the MLA who functions as absolute monarch in the college. He submits that this is a gross inactivism. He states that the same is hijacked by the MLA.
Advocate Vinor Kulkarni for petitioner submits that it is wrongly quoted that Hijab in not quoted in Holy Quran. The Court stated that it has been already argued and stated. To which he submits that it is denied that Hijab is affecting the public order. He states that Constitution is supreme and all religions are equal as per the secular India. He states that Hijab is a custom. The Bench interrupted and stated that nothing will be allowed to read, as submissions are made, the same can be read afterwards by the Court itself. The Bench stated to provide the copy of rejoinder to opposite party as well. He requested for interim order in regards for wearing Hijab on Friday at least, but the Court denied saying that they are already in mid of final hearing and no such decision is required as of now. The Counsel submits to bow down to the verdict.
Senior Advocate Pramila Nesargi submits to mention an interim application to which the Court denied to hear any interim applications.
One of the Counsel for petitioner was physically present in the Court and stated to argue in the PIL so filed by him. He stated that he hasn’t argued till now. He states that he is social worker with no private interest and come up after having seen the humiliation and torture by media to the students. He states that he submits that media shouldn’t be allowed to shoot photography on the innocent girl child. He requests to pass interim order. He states that issue involves around the uniform. He states that even in POSCO Act, child is below 18 years. And since child is involved, the same has to be seen in that regards. He states that he has already shown colour shots wherein media is chasing the girls. While they remove the hijab, the media is capturing them. He states that let the order be passed on the attire. The bench asks that what is the material to the claims made. He states that he has already shown screenshots and the CD that captures everything. He states that principal restrains the child, the police men chase girls, while girls are asked to stand outside. The bench asked about the grievance, to which he submits that media should be refrained. The bench states that on record firstly, it has to be proven that their privacy is being entered into. He states that if 24/7 a student is being chased, a teacher removes the burkha of the girls, there is privacy concern involved. While the bench asks for proof, he states that he has mentioned everything in the Cd. The bench asked the counsel to make complaints to the authorities. He states that an FIR has already been registered. The Bench stated that since many organizations, police are already there to help, the PIL must not be filed and such organizations must be best for the help. The bench states that no single complaint has been made. The bench stated time and again the SC has heard such cases and held that Court cannot interfere and for the same complaints must be made as per appropriate legal forum and procedure prescribed. The Bench stated that for this reason, the Bench is dismissing the Petition.
One of the Counsel for the petitioner requested to make his submissions for rejoinder, the Bench stated that let them hear fresh petitions first and then after the rejoinders can be heard. Furthermore, the bench stated that once reply has given, it cannot be on installment basis and since Advocate Kaamat has already appeared for the same, again submissions shall not be made. To this the Counsel replies that Adv. Kaamat has not argued on the same. The Court agreed and stated that let fresh ones should be heard first.
Advocate Subhash Jha for the petitioner mentions that the petition is filed by a practicing advocate and raises an important question dealing with safety, security, integrity and unity of the nation. He states that every person can be stated to be aggrieved by what exactly is happening in the State of Karnataka and affecting the whole country. He states that he questions that for how many years the Court shall be deciding the issue of Hijab and dress code. He states that firstly it started in Bulandh sheher in UP wherein Allahabad High Court paid attention to the same. He states a judgment (AIR 1974 Allahabad 133) by Justice MN Shukla and Justice KM Seth where Adv. Prayag Das was not permitted to appear in front of Civil Judge and he filed case in High Court which involved issue of attire. He submits that it was the first time that the importance of dress code was highlighted. The Bench states that it did not involve school dress. To which, the Counsel submitted that yes, but the issue of dress code was first involved. He submits that various judgments as to compilation submitted by him and read the same to mention that the issue of dress code is not something new and has time and again been heard by various Courts. The Bench questioned that the facts and circumstances are different in all the cases and not relating to school dress and asks what exactly he wishes to submit. He submits that vide these; he wishes to cite the importance of the dress code. He states that it a criminal waste of judicial time that every High Court is suppose to decide the same issue as it has been into consideration so many times in past as well. He also mentions that he shall also mention afterwards that how SC of Malaysia has dealt with the issue. The Bench interrupted and stated that they have already heard this issue and his petition is solely about to have an investigation on the issue. The Counsel mentions to start with second issue. He states that he is taking to judgments where Islam is the religion. He talks about Malaysian SC has relied upon half of dozens of cases of Indian SC. The Bench stated that our constitution is not about what other countries do and decided upon. The bench states that he shall come to his first prayer and if wishes to, can argue on that particular prayer. The Counsel submits that the organizations so mentioned therein in his prayer, is because there is active involvement of these organisations in the issue.
He states that agitation of this cannot be started out of a blue. The bench stated that they cannot go on presumptions. The Counsel states that all this is constituted on based of materials. He states that while such petitions were heard, the young boy Harsha was killed. The Bench interrupted to not mention the organizations on assumptions as the investigation of the same was pending and the Police is well doing their work in the case. The Bench after hearing contention of organizations in regards of the issue, stated that they shall consider the issue and since a report has already been called from the Government, the same will be duly considered. While the Counsel requested for 10 mins, the Bench allowed next 2-3 minutes to cite what he wishes to as quickly as possible. The Counsel submits the judgment of Malaysia SC, MeorAtiqulrahman case wherein wearing of turban by a muslim man was an issue. He read the observation of the Court in the case. The bench stated that let him end and his consideration is recorded.
SR. ADV. AM DHAR FOR PETITIONER requested for making his submissions. But the court asked to bring the review petition so filed by some other Counsel. The Court also then after told Adv. Dhar to not argue as his submissions has already been recorded and he has been provided enough time already.
Advocate Rahamathulla Kothwal for review plea for petitioner submits that she wishes to bring attention towards the order dated February 17, 2022.
The bench questioned what exactly she wants to show, to which the Counsel states that there were errors in recording her petition earlier wherein they challenged the government order. She submits that petition filed was by the students aggrieved. She submits that she is connected to the case from the inception and drafted the petition overnight on the date the order was passed. She states that she was involved even when other submissions were recorded. The Bench stated that since aggrieved persons are already approached, the PIL was not maintainable and hence, no error occurred in passing the judgment. Hence, the Court dismissed the review petition.
The Counsel present in the room submitted that the resolution passed and the document submitted is fabricated. He states that the document is relied on by the State and also Advocate Nagananda submitted that there is typographical error on the same. He submits that there is handwritten copy of the minutes. And there is serious discrepancy in the Canadian typing and English typing. He states that no single document has been produced that has been shared by the MLA in between 2013 and 2018. He submits that while State has submitted documents starting from 2014 onwards, it is to be noted that the CDC came into force in 2014 and before than there was no CDC. He submits that the order of 2014 has been provided with that CDS. While the Counsel for the respondent disagreed and stated that the CDC was formed in 2012 only. It was observed by Bench that the Committee was there but was known as some other name. But, to the contention and observation, the Counsel stated that no such Committee was there. He states that commission that has been assigned, no any document is shown that CDS has done the kind of function it was designed to and only uniform thing is done. He submits that if the practice is not hampering other religions, the practice shall be permissible. He mentions that the order is discriminatory. He states that practice is religious and cultural practice of Muslim girls. He states that fathers of constitution did not intend to make rights in private places, but the same were intended to have a broader view and allow the same at all places which include public places. He states that what if the Government comes up again and states any road to be secularism place, can people be refrained to practice their religion. He states that burden on proof lies on the State to prove under what authority such decisions are taken.