Karnataka Education Act Empowers Government To Prescribe Uniform: Karnataka High Court In Hijab Case

A full bench of Chief Justice Ritu Raj Awasthi, Justice Krishan S Dixit and Justice J M Khazi said, "Section 133(2) of the (Education) Act which is broadly worded empowers the government to issue any directions to give effect to the purposes of the Act or to any provision of the Act or to any Rule made thereunder."

It added, "This is a wide conferment of power which obviously includes the authority to prescribe school dress code. It is more so because Rule 11 of 1995 Curricula Rules itself provides for the prescription of school uniform and its modalities. The Government Order can be construed as the one issued to give effect to this rule itself. Such an order needs to be construed in the light of the said rule and the 2014 Circular (Constituting College Development Committee), since there exists a kinship interse."

Senior Advocate Devadatt Kamat had contended that the Government Order cites 'sārvajanika suvyavasthe' i.e., 'public order' as one of the reasons for prescribing uniforms to the exclusion of hijab. He has said "Disruption of public order is not by those who wear this apparel but by those who oppose it; most of these opposers wear bhagwa or such other cloth symbolic of religious overtones. The government should take action against the hooligans disrupting peace, instead of asking the Muslim girl students to remove their hijab."

To which the bench said, "Certain terms used in a Government Order such as 'public order', etc., cannot be construed as the ones employed in the Constitution or Statutes."

It added, "There is a sea of difference in the textual structuring of legislation and in promulgating a statutory order as the one at hand. The draftsmen of the former are ascribed of due diligence & seriousness in the employment of terminology which the government officers at times lack whilst textually framing the statutory policies."

The bench opined, "Nowadays, courts do often come across several Government Orders and Circulars which have lavish terminologies, at times lending weight to the challenge. The words used in Government Orders have to be construed in the generality of their text and with common sense and with a measure of grace to their linguistic pitfalls."

Junking the contention of the petitioners that the Government order was hastily issued even when the contemplated High Powered Committee was yet to look into the issue as to the desirability of prescription and modules of dress codes in the educational institutions, the bench said, "The contents of Government Order give this impression, is true. However, that is too feeble a ground for faltering a policy decision like this. At times, regard being had to special conditions like social unrest and public agitations, governments do take certain urgent decisions which may appear to be knee-jerk reactions."

It added, "May be, such decisions are at times in variance with their earlier stand. Even that cannot be faltered when they are dictated by circumstances. After all, in matters of this kind, the doctrine of 'estoppel' does not readily apply."

It also observed, "Whether a particular decision should be taken at a particular time, is a matter left to the executive wisdom, and courts cannot run a race of opinions with the Executive."

Case Title: Resham v. State of Karnataka and Others with connected cases