If Turban Wearing People Can Be In Army, Why Not Hijab Wearing Girls In Classes : Ravivarma Kumar To Karnataka High Court

A Full Bench of the Karnataka High Court today continued hearing arguments on the petitions filed by Muslim girl students, who challenged the action of a government college in denying their entry for wearing a hijab (headscarf).

Prof Ravivarma Kumar, Senior Advocate, appearing on behalf of the petitioners today argued that the state is discriminating against Muslim girls, solely on the basis of their religion. He highlighted that the Government Order dated February 5 targets wearing of hijab whereas other religious symbols are not taken into account. This leads to hostile discrimination violating Article 15 of the Constitution.

The Bench comprising Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi also heard Senior Advocate Yusuf Muchhala for the petitioners.

During the course of hearing, it also expressed disinclination to hear the intervenors in the matter. "Petitioners are being represented by senior advocates. Where is the question of considering the interventions? These applications will waste the time of the court," the Chief Justice said. He clarified that the intervenors may be heard later, if the bench feels the requirement of further assistance.

Wearing Hijab not prohibited under Education Act or Rules: Kumar

The first limb of submissions made by Senior Advocate Prof.Ravivarma Kumar was that there is no mandatory uniform prescribed for Pre-University Colleges by the Karnataka Education Act and the Rules made thereunder.

He pointed out that no uniform is prescribed for govt colleges under the guidelines issued by PU Education Department, for the academic year 2021-22. "Neither the provisions under the act nor rules prescribe any uniform. Neither under act nor rules there is a prohibition on wearing HIjab."

Kumar responded,

"I am not expanding 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."

College Development Committee not empowered to stipulate Uniforms: Kumar 

Yesterday, Kumar had emphasized that the Education Act is a complete code in itself, and the so-called College Development Committee does not find mention under the statute. "It is an extra-legal authority which is now endowed with the power to prescribe the uniform, contrary to the scheme of the act and letter of the rules," he had said.

Today, he submitted that the Legislature has expressly authorized the authorities coming under the Education Act. Section 143 thereof deals with delegation to authorities under the Act. He contended that since CDC is not an authority under the Act, much less a subordinate authority, and the delegation cannot be made to it.

Kumar mentioned that CDCs have been constituted by a circular issued in 2014. "This is a circular, not an order, issued by the under secretary, not even an order in the name of the Govt...The circular says CDC is to be constituted for the purpose to utilise the grants, as well as maintaining education standards. This CDC is not for students welfare. It is only for academic standards."

He stressed that prescribing uniforms was not a function entrusted with CDC as they have to deal with academic standards.

At this juncture, the Bench enquired whether uniform cannot be prescribed to maintain academic standards. To this, Kumar responded,

Kumar pointed out that the Education Rules categorically provide that any change in the uniform should be notified by the educational institutions by giving one-year advance notice to the parents. He referred to Rule 11 and 12 of the 1995 Rules in this regard.

Justice Dixit then inquired about the authority and authenticity of the paper.

However, Kumar responded that he is not insisting on accepting this. "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?"

He continued, "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 of the Constitution."

The Bench then pointed out that Article 15 may not have an application here insofar as wearing of the headdress of all religions is banned.

However, Kumar argued that the GO was only targeting hijabs which is worn by only Muslims. The wearing of ghoongats and turbans is permitted.

At this point, Justice Dixit asked : "Even if a person belonging to another community, a lady belonging to another community, suffers from acacia, and to minimize the ugliness, she wears the headgear and comes to the school. She will not be permitted".

Kumar replied that such a girl can seek for relaxation which will be considered on the basis of humanitarian grounds. But in the case of hijab wearing girls, religious prejudice was at play.He added that the petitioners were denied entry to the college, without even giving an opportunity to present their case.\

"We are not permitted, we are not heard but punished straight away. Can it be more draconian? Can they be called teachers for shutting us out? 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."

Goal of Education to promote Plurality: Kumar

Kumar further argued that the goal of education is to promote "plurality", not to promote uniformity or homogeneity. "Classroom should be a place for recognition and reflection of diversity in society," he said.

Reliance was placed on the Supreme Court's judgments in NALSA v. Union of India (on transgender rights) and Navtej Singh Johar v. Union of India (which struck down Section 377 IPC).

Kumar further cited the case of Rosamma AV v. University Of Calicut, to emphasize that unity in diversity should be the motto and heterogeneity should be maintained.

He stated that the Government of India had itself submitted before the Apex Court in Society of Unaided Schools v. Union of India, that 'Heterogeneity in classroom should be maintained. This is the motto of RTE Act.'

"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...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."

Impugned GO suffers from manifest arbitrariness: Sr Adv Yusuf Muchhala

Muchhala argued that the impugned GO, preventing Muslim girls from wearing headscarves, suffers from manifest arbitrariness. He referred to the principle of manifest arbitrariness used by the Supreme Court to strike down triple talaq in the Shayra Bano case.

"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. Fairness requires notice. Fairness requires being heard."

On the aspect of right to freedom of religion, Muchhala argued that it is not necessary that a practice should be an 'essential religious practice' for attracting Article 25(1). 

"When the right is claimed under Article 25(1) and 19(1)(a) of the Constitution, 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."

He added,

"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. 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."

Muslim girls can't be made to choose between religion and education: Muchhala

Muchhala further argued that Muslim girls, who conscientiously believe that they should wear headscarf, should not be put to a Hobson's choice regarding education and faith.

"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. 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?"

He added that assuming the State wants to implement a universal uniform, it should consult persons whose rights are affected. "What is the constitutional right that is infringed, Article 25, my right to conscience and my right to have an education. Thus the action is totally disproportionate."

Case so far