Resume classes; don’t wear anything that instigates: Karnataka High Court to hijab case petitioner

The Supreme Court has asked a petitioner to wait for the Karnataka high court to decide on an Udupi government college ban on students wearing hijabs. The HC on its part asked students not to insist on wearing any cloth on campuses of educational institutions which could ‘instigate people,’ until the case was decided. It posted the case for Monday and asked educational institutions to resume classes. Those who sought relief from HC may appeal against the interim HC order in the SC soon.

A full HC bench of Chief Justice Ritu Raj Awasthi and Justices JM Khazi and Krishna S Dixit said it wanted the matter resolved at the earliest but till such time peace and tranquility must be maintained. “Till the disposal of matter, you people should not insist on wearing all these religious things. We will pass an order. Let the schools-colleges start. But till the matter is resolved, no student should insist on wearing religious dress,” CJ Awasthi said. However, petitioners’ lawyer Devadatt Kamat said that such an order amounted to suspension of his clients’ constitutional rights under Article 25. “That will be a total affront to their rights,” Kamat contended. Chief Justice Awasthi then said the matter would be resolved in a few days and asked him to cooperate.

At the Supreme Court, earlier in the day, Chief Justice of India NV Ramana told senior advocate Kapil Sibal to wait for a day or two, after specifically seeking to know if he was seeking transfer of petitions from the HC. “Let the high court hear”, the CJI said. Sibal insisted that the case may have pan India ramifications. The bench, which also included Justices AS Bopanna and Hima Kohli, refused to deal with the case as the HC was hearing it. “If we list it here, the high court won’t take it up at all,” the CJI said. SC usually insists on an HC order on key constitutional issue, so that it can benefit from its reasoning, before deciding the issue for itself.

SC’s decision came on a petition of Fathima Busra, a student of government PU College, Kundapura, Udupi, under Article 32, who sought urges SC hearing on the issue as it related to protection and enforcement of Fundamental Rights. The petition said that Muslims constituted about 18% of India’s population, while urging the court to authoritatively give a quietus to the matter and ‘preserve the ethos of unity in diversity and tolerant and positive secularism’ envisaged in our Constitution.

She said her fundamental rights under Articles 14, 19, 21 and 25 were violated with impunity by the college which has denied all hijab-clad girls from attending regular classes until they remove their headscarfs/hijab. She challenged an order passed by the state on February 5, 2022, in exercise of its powers under Section 133(2) of the Karnataka School Education Act, 1993, backing the power of the college development committees to prescribe school/college uniform for students. This implies that the wearing of hijab is not protected under Article 25, she said.

Something as innocuous as wearing of a hijab by a Muslim girl student has been ‘turned into a communal issue of such magnitude’ that the state government has had to shut down schools and colleges across Karnataka till the weekend, it said. She argued that a Muslim girl pursuing her education wearing a hijab/headscarf offended no right of any person and militated against no state interest. Even otherwise, the Islamic practice of wearing a hijab/headscarf satisfied the threshold of “essential religious practice” earlier used by the court to decide such issues, she said. Hijab is also part of her cultural rights, she said. She and her hijab-clad friends were denied entry into schools and colleges for a week now and exams were only two months away, she said, urging the top court to address the issue. Any delay would unnecessarily dent their educational careers.