The Karnataka High Court on Tuesday resumed hearing on the petitions filed by Muslim women, seeking permission to wear Hijab and other headscarves to educational institutions.
Senior Advocate Devadatt Kamat, representing the petitioner,
submitted that while various important questions were fallen off yesterday, the attention was drawn towards public order. The Counsel submitted that the order so put forward had clearly mentioned ‘Sarvajanik Suvyavasthe’.
While the state mentioned that the same has more than one meaning, the Counsel submitted that the official translation of Constitution has the term used as public order only.
The Bench stated that just because of the words used, the Court cannot equate the same.
The Counsel submitted that the terms used in the order were not capable of two meanings. The Counsel stated that public order, as per the Kannada translation, is Sarvajanik Suvyavasthe.
The Counsel said the interpretation so put forward by the State cannot be taken into consideration as the meaning as per constitution is public order only. The Counsel submits that the term public order is used in total 9 times in the Constitution and in all the places the uniform Kannada term used is the same. Hence, there is no different meaning. the Counsel requests the Court to look forward to Article 25 wherein the subject is to only public order and in Kannada version, it is Sarvajanik Suvyavasthe. The Counsel hence, rests his case.
The next important question put forward in contentions by the Counsel explains in regards to the Article 25(1). The Counsel refers to a case of 1962, 2 SCR 456 in which the SC clearly said that if anything is a part of essential practise, it must be upheld. The counsel states that the question is what is the extent to which State can interfere in the religious practice in the shield of public order. The Counsel submits that SC has time and again held in various cases that a person has guaranteed right to practise his religion with subject to criminal laws and subject to restrictions, public order and powers of state for e.g., religious practices of sacrificing of women, animals etc. Only in such cases, the state can intervene only for the humanitarian grounds. The Counsel hence submits that there has to be some amount of power to which the state can intervene. The Counsel states that the words used in Article 25 are freedom of conscience and free profession, practice, and propagation of religion. This means, the stopping can be done only when something is abhorrent. But in this case, it is an practice of wearing head-scarfs, which gets it meaning from Article 25 itself wherein the terms like conscience, free profession is used.
The Counsel submitted that the essence of Article 25 is that it protects the religion of faith. The Counsel submits that during his time, he used to wear Rudrakhsh, which was not to show off his religion, but was his faith and his connection with his creator and God. The Counsel submitted that this cannot be display of religion, but a respect of the religion. There is difference between display of religious activity and respect of the religion.
The last, the Counsel submitted that the state argues that there is a law, there is an education act, there is a circular and hence it can be curbed. However, the Counsel submits that this cannot be the way to interpret the Constitution and most importantly the fundamental rights. The legislature ought to have applied his mind else it can be very dangerous as it is happening now. The State has to demonstrate the intention ex-facie which the State falls into. The Counsel states that education act by any way is not showing any relation with specific intent relation to Hijab which state relies upon. And, it is for that reason, the Education Act is not challenged because the intention is nowhere present which the State relies upon.
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The Counsel furthermore submits there are countries with similar paradigm and all of them are having written constitution. The Judgment of South African High Court is mentioned (Antony vs Governing Body 2002 4 SA 738) wherein it was held that the values and principles must not be put down and the mutual respect has to be protecting rather than infringing or punishing. The next judgment so cited by the Counsel is by a Constitutional Court judgment (Navneethum Pillay) wherein the matter was in relation to nose ring. The Court in that case stated that the case has centre of controversy in a tiny gold nose ring. The issue before the equality court was whether to permit the nose ring was against the equality act. While in that case too, it was a core practise of the religion and the Court upheld the same considering the religion and the rituals so involved. The High Court set aside the order of the lower Court and the school’s order. The Counsel mentions the contentions of the school in the case as they contended the same to be importance of uniforms, nose rings as nose studs, and the fact that she can wear anything outside the school. Now, the Counsel compares the contentions therein by school are very similar to put forward by the State herein. But the question put forward by the Counsel remains the same that how will it be making a change if they are permitted to practice their religion. The Counsel further mentions that the cultural practises are as strongly held as those who hold their beliefs. The Counsels states that we are all linked by superior forces and every human is an extension of other. The Greek methodology is being stated by the Counsel to define one’s identity and most importantly the cultural identity. The Counsel mentions Page 73 of the judgment, running page, wherein the core of the principle is mentioned that the schools must take positive measures to allow all people to enjoy their rights equally and without discrimination.
The Counsel again mentioned the case of Bijoy Emanuel stating that even in those cases, the Court mentioned it all. The Court had said about religious activity and core practices way before the issue got in question. The Counsel submits that everyone deserves protection even in schools to profess and practice their religion. The Counsel mentions that no doubt the no religion is above the greater good, but the core activities if not harming anyone can be allowed. The Court held that in the case of nose ring, the case was not about uniform but it was more was that whether few people should be exempted from extra additions. The counsel submits, herein while there is not even any such issue, but only as an addition of Hijab, it is more about granting religious and cultural exemptions.
The Counsel hence urges for consideration as the case is more about that whether certain accommodation, decree or freedom can be given to students to practice their religion or not. The Counsel further submits that the essence of Article 25 is innocent practise of faith and not display of fashion, which herein is only the practise in a way of wearing hijab. He submits that the possibility of abuse should not hold back the rights of those who practise and profess it with their whole heart and faith. Rather, the same must be celebrated and not attacked upon. The Counsel submits that considering the principles laid down by the SC time and again, the wearing of hijab should be considered in the direction of professing religion only. The Counsel submits the judgment of SC of Canada involving an issue of wearing kirpan in school wherein the same was allowed considering the religious beliefs and core religious activity. The Counsel also submitted UK judgment wherein the Hijab was allowed by the SC considering the muslim sentiments and religious practices.
The Counsel submits the judgment of Justice Chandrachud wherein the Justice talked about growing intolerance of religious practices. Hence, the Counsel submitted that the State stating their reasons that it will harm the society or the uniformity, cannot be considered. The Counsel further states that Hecklers veto must be given consideration as the same is already recognized by Justice Chandrachud and various SC judgments so provided by the Counsel.
The Counsel further states that our secularism is not turkey secularism but a positive secularism. He states the judgment of Aruna Roy wherein the secularism was given a different and broader connotation and held that secularism has a positive nature wherein all religions are accepted that enables to remove religious intolerance. In the end, the Counsel submits that the education Act provides with no power to the state to make such circulars and not protect the religions of the students. They have the power to make sure the uniform is obeyed, but there is no power to expel the students for not performing the dress-code. The Counsel submits that doctrine of proportionality comes in as the State has expelled students for wearing extra (hijab) attire. The Bench asked if the students were expelled or not? The counsel submits not expelled, but they were not allowed to give or attend classes. The Bench tries to explain the Counsel that the doctrine can not be used as there was no expulsion.
The Counsel admitted that the wrong word is being used by the Counsel, as even though expulsion is not done, yet their fundamental right to get education was infringed by not allowing them entry in the school/class. The Counsel further mentions the detailed orders passed but the Bench interrupts by stating that no orders were passed. The Counsel however, insists that even the words and observations have high value and thus to be considered. The Counsels reads the order which mentions that Article 25 is subject to reasonable restrictions. He mentions that the same is wrong as they are not subject to reasonable restrictions. The Counsel submitted that sweep of the order is extremely broad and in meanwhile, the Court must allow the petitioners to allow wearing the Hijab. The Counsel requests and prays for staying the interim order and allowing the petitioners to wear Hijab.
The Bench gave allowance to Senior Advocate Prof. Ravirama Kumar to present himself. The Counsel submitted to look forward the statement of objections so put forward by the State.
(The Counsel for the respondent interrupts and states that there is this petitioner Reshma who has filed 2 petitions. Thus, one of them has to be withdrawn. One of the Petitioner present physically in the Court, submitted that once he got to know the fact, he has filed for withdrawn and since the controversy and issue raised needs attention, the same shouldn’t be considered for now. The counsel for the Respondent states that assisting is different, but 2 petitions cannot be done as it is duplication. The Court made it clear that they will only hear one counsel in one case.)
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Ravi Kumar Verma begins with his submission after huge arguments on duplication. He submits to put light on the statement of objections put forward by the State. The same begins with reasons so mentioned as to why students were not allowed to enter the premises. The Counsel submits that the State has relied upon Karnataka Education Act by directing students to follow uniform dress-code in schools and premises wherein the decision was taken on 31st date of the month. However, the Counsel submits that the date is very important as the petitioner were already not allowed to enter before 2 days of such date. The petitioner submits that the government order so issued in regards of uniforms has no mentioning of the Hijab but the institutes and schools started targeting students by virtue of the order mentioning Hijab as not allowed thereby, not allowing entry of the students wearing so. The Counsel submits to look forward the operating part of the order. The Counsel further mentions that there is some error in statement of objectives at the order remarks the date 04.02.2022 but the same has to be 05.02.2022. The Counsel submits that no uniform is prescribed by the Government. A high-level committee is set up to fix the same but at present there is no prescribed uniform. In colleges, the college development committee has stated that the dress code so fixed must be followed. The dress-code if not followed will be discrimination and breaking uniformity. But the Counsel submits that uniform has to be followed but the same does not ban Hijab, then by what virtue the same is said not be not part of the uniform or is considered to be violative of public order. The Counsel submits that now it has been provided that the college committee shall provide with the uniform. But as per the rules of the Education Act, it is not the committee to decide upon such issue when it involves religious issue. Hence, it is submitted that since the committee is a competent authority, it has no power from the act to decide on the same. Thus, the college committee is not a statutory body to decide upon the same. By the end, Ravi Kumar Verma requested that since colleges are opening from tomorrow, some consideration should be given but the same was not considered by the Court as it was stated that the matter will be heard again.
The Bench decided to hear the matter again tomorrow at 2:30 PM.