The Hijab case is now being heard by the Karnataka High Court. (File)
Karnataka's Hijab row played out for the fourth day in the High Court on Wednesday, with the Chief Justice hearing arguments from Muslim girls who have challenged restrictions on wearing the religious headscarves in classrooms.
Arguing on behalf of petitioners, advocate Ravi Varma Kumar asked the judges why the Hijab was being singled out when there were "hundreds of religious symbols from dupattas, bangles, turbans, crosses and bindis" worn by people every day.
Even as the Karnataka High Court hears arguments on allowing religious clothing in educational institutions, another government college in the state has turned into a site of protest for sending away students who insisted on wearing the hijab (headscarf) in classrooms. The Government PU college at Vijayapura in north Karnataka, which allowed hijabs earlier, did not allow students wearing hijabs to enter the classrooms today. The college administration argued that they were only following interim orders of the court, which had allowed schools and colleges to resume only on the condition that no religious clothing be allowed in classrooms. The students, however, say the college did not inform them that they would not be allowed in hijabs or burkhas.
Dramatic visuals from the college show some students who had entered the classroom in hijabs and burkhas arguing with the teacher and the Principal of the school requesting them to follow the court order.
"We are in accordance with the High Court's order that says no religious garment, whether hijab or saffron shawls, will be allowed inside educational institutions," the Principal can be heard saying.
After a squabble, a separate space inside the college was allotted to these students to take off their hijabs and burkhas, and enter the classrooms.
The Principal had stopped these students at the entrance of the college but they forced their way in and protested against being denied entry.
After they were asked to leave, the students protested by raising slogans of "we want justice" and expressing their anguish to the media present at the spot.
Some women police personnel could also be seen at the spot in the videos from the college.
On February 14, students at some Karnataka schools were directed to remove their hijabs before entering the campus, in accordance with an interim High Court order that said educational institutions could re-open (after having been shut last week) but no religious clothing would be allowed.
Videos of women being asked to remove their religious clothing in the open had caused a massive outcry on social media with many calling it a "humiliating" experience.
Controversy over Muslim students barred from wearing the hijab began in December after six girls from Karnataka's Udupi district voiced their concerns. They then approached the High Court.
Since then it has snowballed into a significant matter, with the Supreme Court also approached.
However, Chief Justice of India NV Ramana said: "We will interfere only at an appropriate time."
Protests have escalated rapidly over the past few weeks; last week a young student in Mandya was heckled by saffron-waving male aggressors shouting 'Jai Shri Ram'.
Separately there were also incidents of stone-throwing and police firing teargas to break up crowds.
Here are the Live updates on Hijab Row:
Bench rises. Hearing to continue tomorrow at 2.30 PM.
Sr Adv Adish Agarwala mentions one intervention application opposing the petitions.
CJ says no interventions are being permitted.
Advocate General seeks 2 days time to file objections to the IA seeking clarification. Bench grants.
Kumar : Seeking a clarification..just to use the same duppata to cover their head. Let the students get back to the class.
Sr Advocate Professor Ravivarma Kumar: A proper application is made seeking clarification of the interim order. Yesterday due to some technical reason it was not considered.
CJ: We are left with WP no 3148. That is a PIL. Also 3422 that is also a PIL. Only two writ petitions left to be heard.
CJ : We do not know whether you are making arguments for interim or final stage. We have not disposed of any interim applications. Let that be clear. We have passed only interim order.
Muchhala concludes arguments.
Muchhala: I belive these arguments are at the interim stage and not final stage. There is some confusion in my mind. Please forgive me for asking this.
CJ : You people have started arguing and we have started hearing.
Muchhala: What is the constituional right that is infringed, Article 25, my right to conscience and my right to have an education. Thus the action is totally disproportionate.
Mucchala on the second test of proportionality regarding less restrictive measures : Assuming they want a universal uniform, why not consult persons whose rights are affected?
Mucchala on the second test of proportionality regarding less restrictive measures : Assuming they want a universal uniform, why not consult persons whose rights are affected?
Muchhala: First this, this impugned action is not advancing the purpose of the (Education) Act. Harmony is the real purpose of the act and measure taken by them goes against harmony and the fundamental duties.
CJ : Finish your arguments today, so that we may hear the other side.
Muchhala continues. He refers to Modern Dental College case (2016) 7 SCC 353.
CJ : That you elaborate in written submissions.
Mucchala : Give me 10 mins more.
CJ : We have already noted. If you want to elaborate, give it in writing.
Mucchala : Give me 10 mins tomorrow. I will not take more than that.
Muchhala: Constitution takes into account the diversity that exists in the country.
CJ : Alright Mr. Yusuf, we have understood what you are saying. You will be able to finish today. Any other point to elaborate?
Mucchala seeks some time tomorrow to argue on proprotionality.
Muchhala: The purpose of the Education Act is to promote harmony and not to create dissent among students. Why govt should come out with such impugned legislation? Are we promoting common brotherhood with this?
Mucchala : The object they have launched is opposed to the fundamental duty of the citizens as well, as it goes against the promotion of communal harmony.
CJ: We have understood, that it is not necessary that it should be an Essential Religious Practice to attract Article 25.
Mucchala : The belief has to be protected.
Mucchala : Conscience is a very wide term. There are people who do not believe in God but believe in conscience. There are some who believe in the universality of all religions.
Mucchala : When the right is claimed under A 25(1) and 19(1)(a), what matters is the entertainment of a conscientious belief by individual. When right is claimed as a matter of conscience, it is not necessary to delve into the question whether it is an integral part of religion.
Muchhala : The question regarding integral part of religion arises when the right is claimed by a denomination under Article 26 and not when an individual is claiming freedom of conscience under Article 25.
Muchhala: The fact that it is being doen because of the opposition of other students is recorded in GO. So it is partisan. It is totally unfair. It falls within the mischief of "manifest arbitrariness" and hence be set aside.
Mucchala : Tearing hurry is that some students is opposing it. They do not claim any religious rights. The opposition to the girls only. Is this fairness? Both sides should have been heard and brought about a solution. This is the ground of manifest arbitrariness
Mucchala : Why the PTA committee was not consulted?. What was the tearing hurry? The practice of wearing was there since the time they took admission in schools. What was the hurry in changing?
Mucchala : On the ground of fairness they should have been heard, the parents should have been heard. They should have asked the Parents Teachers Committee.
Mucchala : Fairness requires notice. Fairness requires being heard. PTA committee is formed to avoid any trouble in school, they are not consulted. Fairness requires notice should be given.
CJ : Was any headgear part of the uniform?
Muchhala: They are only putting one apron over their head. When we say uniform, we cannot strictly confine to dress code. What was the practice adopted at school has to be seen. It has been changed without notice.
Muchhala: Here in this case, the girls were wearing headscarf since they joined schools.
CJ : Whether it is part of uniform?
Mucchala : If a girl is wearing glasses, can it be insisted that it is not part of the uniform? You cannot take it so strictly.
Justice Dixit : Manifest arbitrariness has now become a ground to strike down plenary legislation. Based on that proposition, you can build your arguments?
CJ: On what proposition you want to cite this judgement?
Mucchala : Manifest arbitrariness.
CJ : Alright.
Mucchala : The GO suffers from manifest arbitrariness. I will refer to three paras from Shayara Bano (Triple Talaq case) and demonstrate how this GO preventing girls from wearing headscarves is manifestly arbitrary.
Mucchala : I endorse what my learned friends argued. Mr Hedge, Mr Kamat and Professor Ravivarma Kumar. I seek indulgence to elaborate on two-three points, which they have not touched upon.
Sr Adv Yusuf Muchhala begins submissions.
Muchhala : I speak from Bombay, there is some problem, getting too much echo.
CJ : We are hearing you. You are audible.
Kumar : Judicial note is to be taken that Muslim girls are least represented in classrooms. If they are shut out on this pretext it will be very draconian.Kumar concludes his submissions.
'Heterogeneity in classroom should be maintained. This is the motto of RTE Act' - this was stated by Govt of India before SC in the Society of Unaided Schools case- Kumar submits.
Kumar: My submission is that if people wearing turban can be in the Army, why not a person sporting a religious symbol be allowed to attend classes.
Hijab Row Sponsored By BJP In Karnataka, Charges SDPIThe social democratic party of India (SDPI) on Wednesday charged the BJP with 'sponsoring' and 'promoting' the hijab-saffron shawl issue in educational institutions in Karnataka, reported PTI.
Addressing reporters, SDPI state general secretary B R Bhaskar Prasad alleged that the entire issue is a 'criminal act' sponsored by the BJP government in the state.
Noting that the constitution never barred Muslim women wearing hijab, he alleged that the issue was created by a college principal which was later taken up by the Sangh Parivar outfits.
Kumar refers to "Rosamma A.V vs The University Of Calicut". These judgement state that University in diversity should be the motto and heterogeneity should be maintained.
Kumar refers to NALSA judgment (on transgender rights) and Navtej Singh Johar judgment (which struck down 377 IPC).
Kumar : Third submission is that the goal of education is to promote plurality, not to promote uniformity or homogeneity, but heterogeneity. Classrom should be a place for recognition and reflection of diversity in society.
Kumar : Here it is full of prejudice because of the religion. No notice, straight away sent out of the classroom, by persons without authority under the Act or rules.
Kumar : We are not permitted, we are not heard but punished straight away. Can it be more draconian? Can they be called teachers?
Kumar : No other religious symbol is considered in the impugned Govt Order. Why only hijab? Is it not because of their religion? Discrimination against Muslim girls is purely on the basis of religion and hence a hostile discrimination.
Justice Dixit : Even if a girl from another religion, who is suffering from acacia, and wears a headdres to cover her ugliness, will she be permitted.
Kumar : She can apply for exemption. That analogy may not be applicable here. It is a humanitarian case which will be considered
Kumar refers to AIR 1953 Supreme Court, 384 which declared communal electorates as void.
Kumar : Why only this, why not the turban of a sikh, the cross of the Christians?
Chief Justice : You are saying Article 15 prohibits discrimination on the basis of religion. But this saying wearing of the headdress of all religions is banned.
Kumar : Hijab is worn only by Muslims. Ghoongats are permitted. Bangles are permitted.
Kumar : This is only because only of her religion that petitioner is being sent out of the classroom. A bindi wearing girl is not sent out ,a bangle wearing girl is not. A Christian wearing cross is not touched. Why only these girls? This is violation of Article 15
Chief Justice : Alright. We have taken note of this.
Kumar : I am only showing the vast diversity of religious symbols in all sections of the society. Why is Govt picking on hijab alone and making this hostile discrimination? Bangles are worn? Are they not religious symbols? Why are you picking on these poor Muslim girls?
Kumar : Sir, when there are 100s of symbols then why is the government picking on Hijab. Bangles are worn...
Justice Dixit interjects: Unless the authenticity of paper is established we cannot go by what it says.
Kumar : I am not insisting on accepting this. I am only brining thingss to the notice of the Court to show the religious diversity.
Kumar : Kindly take judicial note of the fact that college going girls wear a dupatta, whether Hindu, Muslim or Christian.
Justice Dixit : What is the authority and authenticity of the paper? What is the representative sample?
Kumar reads the research paper - "Most of the religious attire is gender-specific. 2/3rds of Muslim women say they wear a burkha. Half of more Hindus wear religious pendants. Most Hindu, Mulsim, Sikh women cover their head outside the home".
Kumar refers to a research paper based on a comprehensive survey done on religious clothes and symbols. "Many Indians display the religion through attire. Half of Hindus and Muslims majority of Christians say they generally wear a religious pendant. Most Sikh men keep hair long"
Kumar : The issue was not decided for 50 years. By the time the decision came, the elephant died.
Justice Dixit : That should not happen in this case.
Kumar : The order constituting CDC has to be ignored. Don't let the committee decide the welfare of the students and chuck them out of the classroom on one pretext or the other.
Kumar : In south India, people are fond of religious symbols. Even our teacher used to come with religious symbols. Either in foreheads or wearing caps. Sir there was a temple elephant. The question was what type of symbol should be put on the forehead of the elephant.
Kumar : With all humility, I say the constitution of a committee of this nature gives a death blow to our democracy and separation of powers.
Kumar : Kindly take judicial note of the fact that an MLA will be representing a political party or a political ideology. Sir, can you entrust the welfare of the students to a political party or a political ideology?
Kumar: Sir, in the year 2015, Govt constituted a committee under local MLAs, for distributing houses under the Free housing scheme. That order was challenged as MLAs can't be given administrative powers.
J Dixit : Was it struck down?
Kumar : I myself argued it. Orde stayed.
Kumar : Everything is wrong to give MLAs administrative powers. That will be a death knell to our democracy. MLAs are to be fearless in the floor of the house. They can't be made subordinate to the Govt.
Kumar : Now under the CDC, MLAs take over the administration. MLA cannot be entrusted with any administrative power. That is unknown in our Constitution, it violates the separation of powers.
Kumar: In our constitution, it is the representative of peoples who hold the govt accountable. The hallmark of our democracy is holding the govt accountable by elected representatives. How can they be regarded as subordinate to govt?
Kumar refers to the composition of CDCs. It consists of MLAs. Can MLAs be treated as subordinate to the Govt? he asks.
Justice Dixit : What is the police power sir? Sanskrit pathshalas prescribe uniforms, can it be police power.
Kumar : Supervisions over students is called police powers.
Justice Dixit : Judicial opinion is different. It is termed parental power not police power.
Kumar: The power to discipline students is I am saying is police powers.
CJ: You says that CDC has no power to prescribe uniform.
Kumar : Right.
CJ : Why it cannot uniform be related to maintaining academic standards? To maintain student discipline..
Kumar : By no stretch of imagination, uniform cannot be related to academic standards. CDC cannot have police power over students.
Kumar: The circular says CDC is to be constituted for the purpose to utilise the grants, as well as maintain education standards. This CDC is not for students welfare. It is only for academic standards.
CJ : Whether uniform can't be prescribed to maintain academic standards?
Kumar : With great respect, academic standards have no relation with unfirom. Academic standards deal with student-teacher, syllabus etc. CDC cannot have police powers over the students.
Kumar mentions that College Development Committees are constituted by a circular in 2014. Not even an Order.
"This is a circular, not an order, issued by the under secretary, not even an order in the name of the Govt" - he says.
Kumar: Section 143 of the Act deals with delegation to authorities under the Act. I have already shown College Development Committee is not an authority, much less a subordinate authority. So delegation cannot be made to it.
Kumar: In other words, the govt has delegated the power to prescribe uniforms to the College Development Committees. May I request the court to take the Education Act. Legislature has expressly authorized the authorities coming under the Act.
Kumar submits that as per the GO, colleges coming under the jurisdiction of PU board, students shall wear the uniform as per CDC decision.
Kumar reads the GO and says "there is a direct indictment against those coming in hijab".
Kumar : I am not expending the proposition I have made. I am only saying there is no prohibition against Hijab.
The question that comes then is under what authority or rules I have been kept out of the class.
Justice Dixit : There is no prohibition to carry kirpan if it is not prescribed. However, the power to prescribe under rule 9 is there. hat needs to be independently argued.
Justice Dixit: That may not be a correct question. If that view is taken, somebody may say there is no license required to carry arms in the classroom as there is no prohibition. I am logically analysing what your proposition can take us to.
Kumar : Neither the provisions under the act nor rules prescribe any uniform. Neither under act nor rules there is prohibition on wearing HIjab.
Kumar : I am not enforcing this document. I am only placing this document to show what the department itself has said - an emphatic statement that no uniform is prescribed, that principal shall not insist on uniform & principal will face disciplinary action if uniform insisted
Kumar : I am relying on this to show that there is no uniform prescribed for PU colleges for current academic year.
Kumar : I am not saying it has force of law. All that I am saying it is a statement of fact that there is no uniform is prescribed for govt colleges.
Justice Dixit: You are pressing this instrument. We want to know what is its legal status, if you want to bank upon it.
CJ : Who has issued? Nothing is revealed.
Kumar : This is in the nature of a guideline issued by Dept for all PU Colleges under it.
CJ : It cannot be a regulation.
Kumar : It is not a rule. But it gives a statement of fat that no uniform is prescribed (for PU colleges).
Kumar: May I read the guideline. Uniform is not mandatory for students studying in PU colleges. But some colleges and management committees have imposed uniforms as mandatory, which is illegal. Prescription of any uniform is illegal.
CJ : This is for Pre University Govt College.
Kumar : Yes.
CJ : What is this document?
Kumar : These are the guidelines issued by Govt Dept, namely PU Education Dept, for the academic year 2021-22
Kumar: The GO has declared that no uniform is prescribed for the PU colleges.
Kumar: It is very important to take note of fact that the College Development Council is not an authority which is established or recognised under the rules.
Kumar: These provisions made in 1995 Rules are general in character. PU colleges come under a different rule.
Kumar refers to Rule 11 of the Education Rules.
He refers to the rule which says that educational institution should give one-year advance notice to parents for changing uniform.Referring to rule,If there was to be a ban on hijab, the notice ought to have been given one year in advance.
Chief Justice says if the bench feels the requirement of assistance the bench will hear the intervenors.
Prof Ravi Verma Kumar Sr Adv now resumes submissions. He is referring to the Education Act.
Chief Justice : Alright. Let's begin the hearing.
AM Dar Sr Adv says Senior Advocates be given priority.
Adv Raj: Because it involves a constitutional issue, please permit intervenors for at least five min
CJ : Petitioners are represented by senior lawyers.
Adv Shadan Farasat: Lordships may impose time limit on us. I am going to submit on international law and obligations in this context. I am sure nobody else is arguing that. Please impose time limit, but don't exclude us.
Chief Justice : Petitioners are being represented by senior advocates. Where is the question of considering the interventions? These applications will waste the time of the court.
Advocate General : In the Sabarimala dissenting matters, Justice Indua Malhotra had observed that in religious matters interventions in PIL cannot be allowed.
Chief Justice : Your suggestion is that one lawyer should argue one petition and arguments should not be repeated. From the causelist we find so many IA have been filed regarding intervention. What we feel is that all these IA are not required to be considered. Because this is not a PIL
Adv Kaleswaram Raj: My suggestion is lordships should prescribe the order for arguing for each advocate and time limit.
Advocate General : I would support that.
Court Hearing Resumes In Hijab Case
Adv Subhash Jha: This is the fourth day, every lawyer is capable of arguing for hours. The submission is that issue which the lordships is to decide is not res-integra. Let it be decided as expeditiously as possible.