Karnataka HC reserves judgment on petitions challenging the restriction on wearing hijab

AFTER 11 days of marathon hearings, the Karnataka High Court on Friday reserved its judgment on a bunch of petitions challenging restrictions on wearing the hijab in classrooms in government colleges. A full bench comprising Chief Justice Ritu Raj Awasthi and Justices Krishna S. Dixit and J.M. Khazi granted liberty to all the parties to the case, including the intervenors, to file their written submissions.

Meanwhile, the interim order passed by the bench on February 10 restraining students from wearing the hijab or any other religious attire to educational institutions will continue to operate.

The bench today heard submissions in a rejoinder advanced by counsel appearing for the petitioners' side. Senior Advocate Yusuf H. Muchhala reiterated his submissions that the test of Essential Religious Practice [ERP] is not applicable for claiming the individual right to conscience under Article 25(1). He added that even if the court were to hold that the ERP test would have to be satisfied, he would endorse the submissions made by senior advocate Devadatt Kamat in this regard that wearing hijab is an obligation under Islam. Muchhala contended that the bonafide belief of Muslim girls should be protected and respected by the Court.

Senior Advocate Ravivarma Kumar, appearing for another petitioner, sought to counter the submission of the State Government that the College Development Committees [CDS] has been formed under the Removal of Difficulties Clause under the Karnataka Education Act. Kumar submitted that such a provision cannot be used to create a new body. He also submitted that out of 12 members in the CDCs, 11 are nominated by the local legislator. He thus argued that absolute power to legislators to run the affairs of schools is illegal and unconstitutional, for a legislator cannot exercise executive function.

Advocate Mohammad Tahir, on behalf of the petitioners, alleged that the CDC's resolution, which was placed before the court, had been fabricated. In this regard, he drew the court's attention to inconsistent dates on the document. To this, senior advocate S.S. Naganand submitted that the document had a typographical error and was not fabricated. Tahir submitted that nothing was produced to show that the CDC had been carrying out its duties between 2014 and 2021. Tahir went on to submit that while the state had stressed secularism, ceremonies like saraswati pooja were being carried out in the school. He also argued that the Advocate General Prabhuling K. Navadgi's suggestion that if Hijab was declared an essential practice, women who did not wear a hijab would be removed from Islam was false and exaggerated. He buttressed his argument by stating that many Muslims did not carry out naamaz (prayers) and were still not thrown out.

Tahir concluded that if the school was declared a secular place where no cultural or religious practice could be carried out, it would set the precedent to similarly regulate any public place and that the culture and traditions of the petitioners would be limited to the four walls of their house.

Before concluding the hearing, the bench also heard advocate Subash Jha, appearing in a petition filed by Advocate Ghanshyam Upadhyay, seeking probes by the Central Bureau of Investigation [CBI] and National Intelligence Agency into the agitation in Karnataka after the hijab row. He alleged that the hijab issue was being raised repeatedly at the behest of organizations like Jamaat-e-Islami and Popular Front of India, who intended to Islamisize India. He argued that there was coordination behind the filing of the petitions and the protests that took place simultaneously. To this, the court remarked that investigations were underway and that the State would look into it.

The Chief Justice repeatedly asked Jha to show material to buttress his arguments warranting a probe by CBI. He also observed that the local police are doing their job.