A single-judge bench of the Karnataka High Court consisting of Justice Krishna Dixit on Wednesday referred to a larger bench the petitions relating to the ban on wearing hijabs in schools and colleges across Karnataka.
Justice Dixit requested the registry to place the matter before the Chief Justice so that it could be listed before an appropriate bench which would then decide questions relating to the hijab being an essential religious practice in Islam. He noted that the question of interim relief would also be considered by the same bench.
The matter was first heard on Tuesday where Senior Advocate Devadutt Kamat, appearing for the petitioners, argued that wearing of hijab constituted an essential practice in Islam and was accordingly a fundamental right under Article 25 of the Constitution of India. He also argued that the ban on wearing hijab violated Articles 14, 19(1)(a), and 21 of the Constitution, as well as struck at the heart of secularism, which has been recognized as a part of the basic structure of the Constitution of India.
At the beginning of the hearing itself, Justice Dixit said that he considered it fit to refer the matter to a larger bench. He stated that if all the counsels appearing in the matter agreed, he would refer the matter to a larger bench.
Appearing for one of the petitioners, senior advocate Sanjay Hegde submitted that it was ultimately for the single bench to decide if the matter needed to be referred to a larger bench. However, he submitted that the students who chose to wear a hijab needed to be allowed entry in the interim as there were only two months left for the exam. He stated that the court had to find a way to ensure that no girl child was deprived of education.
Appearing for the College Development Committee (CDC), senior advocate Sajan Poovayya submitted that the issue was squarely within the jurisdiction of the court and it would be appropriate if the court decided the issue.
Supporting Poovayya’s submission, Advocate General Prabhuling Navadgi submitted that it would be appropriate if the issue was adjudicated at the earliest.
Advocate Kaleeswaram Raj, appearing for one of the petitioners, submitted that Madras and Kerala High Court judgments were decided by single judge benches.
Hegde argued that the issue was purely one related to administrative law, and the court only had to decide if there was a power to prescribe a uniform and if it had been properly exercised. He stated that the priority was to ensure that the students could attend school and that a sense of normalcy would return.
Justice Dixit stated that in cases involving personal laws or seminal laws, benches were constituted specifically so that the outcomes are more acceptable. He asked the parties to not be under the impression that the constitution of the bench would take its own time.
Kamat submitted that he did not oppose the suggestion made by the court.
The Advocate General reiterated the need for an early hearing, and submitted that the issue reflected law and order. However, he stated that it was ultimately for the court to decide.
Hegde stated that in case the matter was being referred to a larger bench, the court should consider passing interim orders for the next two months. Supporting this suggestion, Kamat submitted that while the matter was being referred to a larger bench, the students should be allowed to attend classes.
The Advocate General reiterated that the petitions were misconceived and that the students had to follow the dress code as prescribed. He submitted that the institutions had full autonomy and the State had no role to play in the present issue.
He further submitted that the hijab wasn’t an essential practice under Islamic law and that the petitioner’s arguments were flawed. He relied on the Supreme Court’s triple talaq judgment to argue that Hadith is to be treated as a secondary source.
The Advocate General vehemently opposed the grant of interim relief.
Poovayya submitted that the prescription of uniform was there for over one year and nobody had complained until now. He further submitted that the CDC had met every year and all stakeholders have been consulted before a decision was taken. Poovayya also opposed the grant of interim relief.
As the arguments came to an end, Hegde submitted that a teenage girl should not be forced to settle with her conscience for the sake of her education.
Many lawyers tried to intervene but were not allowed by Justice Dixit, who reiterated the need for a harmonious hearing.
Observing that the petitions give rise to certain constitutional questions of seminal importance related to personal law, Justice Dixit passed an order requesting the registry to place the matter before the Chief Justice of the High Court for allocation to an appropriate bench.
The bench also stated that all contentions raised by the parties were left open and that the larger bench would consider the questions related to interim relief.
