Manas Dasgupta
NEW DELHI, Feb 11: Even as the Supreme Court refused to grant an urgent hearing while guaranteeing to protect the constitutional rights of the Muslim girls, the larger bench of the Karnataka High Court has directed the students to go back to the classrooms keeping aside the hijab versus saffron scarf row till the courts decided on the issue.
The Supreme Court too cautioned all concerned against taking the Karnataka issue to the national level and guaranteed that the apex court would intervene “at an appropriate time if needed. “Do not spread things to a larger level. We are watching what is happening there. You have to think whether it is necessary to bring it to a national level. If there is something wrong, we will protect your constitutional rights. We are also concerned. Let us see… at the appropriate time, we will interfere,” Chief Justice of India N.V. Ramana told the advocate of the students who wanted the apex court to take up the issue urgently.
The three-judge bench of the Karnataka High Court headed by Chief Justice Ritu Raj Awasthi, in its interim order released on Friday restrained all students regardless of their religion or faith from wearing saffron shawls (bhagwa), scarfs, hijab, religious flags or the like within classrooms until further orders in the petitions pending consideration on the issue of right to wear hijab in classrooms.
While making it clear that “this order is confined to such of the institutions wherein the College Development Committees have prescribed the student dress code/uniform,” the court requested the State Government and all other stakeholders to reopen the educational institutions and allow the students to return to classes at the earliest.
“Ours being a civilised society, no person in the name of religion, culture or the like can be permitted to do any act that disturbs public peace and tranquillity. Endless agitations and closure of educational institutions indefinitely are not happy things to happen,” the three-judge bench, also consisting of Justice Krishna S. Dixit and Justice Jaibunnisa M. Khazi, observed in its order.
“Firstly, we are pained by the ongoing agitations and closure of educational institutions since the past few days, especially when this court is seized of this matter and important issues of constitutional significance and of personal law are being seriously debated. It hardly needs to be mentioned that ours is a country of plural cultures, religions and languages. Being a secular State, it does not identify itself with any religion as its own,” the bench observed.
The bench also said, “Every citizen has the right to profess and practice any faith of choice, is true. However, such a right not being absolute, is susceptible to reasonable restrictions as provided by the Constitution of India. Whether wearing of hijab in the classroom is a part of essential religious practice of Islam in the light of constitutional guarantees, needs a deeper examination. Several decisions of the apex court and other High Courts are being pressed into service.”
“The hearing of these matters on urgency basis is continuing. Elongation of academic terms would be detrimental to the educational career of students, especially when the timelines for admission to higher studies and courses are mandatory. The interest of the students would be better served by their returning to classes than by the continuation of agitations and consequent closure of institutions. The academic year is coming to an end shortly. We hope and trust that all stakeholders and the public at large shall maintain peace and tranquillity,” the bench said.
The Supreme Court while rejecting the plea for an urgent hearing taking the issue away from the Karnataka High Court amply cautioned against expanding the hijab issue at the national level. The three-judge bench headed by chief justice Ramana was hearing an oral reference from senior advocate Devadatt Kamat who wanted to file an appeal against the interim order of the Karnataka High Court.
“The High Court has indicated that it would pass an interim order that none of the students should wear anything which would disclose their religious identity… Such an order would have wide ramifications not only for Muslims but also for people following other faiths. For example, Sikhs wear turbans. Such an order would amount to a complete suspension of Article 25 [right to religious freedom],” Kamat submitted.
He urged the CJI to list the appeal for hearing on Monday. Solicitor-General Tushar Mehta, appearing for the State government, said the High Court order was yet to come out. Kamat should have mentioned that fact. “We do not know what the order is yet. Meanwhile, the issue should not be made communal or political,” Mehta submitted.
Kamat said the appeal delved solely on constitutional issues and had nothing communal or political about it. He said the arguments in the special leave petition were entirely legal and focused on a crucial right guaranteed by the Constitution. “The interim order may have a far-reaching effect. Schools and colleges are closed in the State… Hear us on Monday,” Kamat urged. “Please leave it to us,” the Chief Justice assured him.
On Thursday, the Karnataka High Court had indicated to the advocates for the petitioner-students and the State Advocate-General that the court would pass an interim order for starting the educational institutions and that students should not insist on wearing head scarves or saffron shawls till the court decided the issues raised in the petitions. The HC had indicated that it would even hear the petitions on a day-to-day basis and decide at the earliest and had scheduled the next hearing for February 14.
Senior advocate Sanjay Hegde argued that the Karnataka Education Act of 1983 has no provision which enables colleges to prescribe uniforms for students. “The 1995 Rules, apart from being incompetent, are not applicable to pre-university institutions since they are promulgated basically for schools,” he contended.
In the apex court, Kamat argued that a government order of February 5, 2022, was drafted without application of mind and that decisions of the Kerala, Madras and Bombay high courts cited by the state order cannot be the foundation for banning hijabs in some colleges in Karnataka. He argued that the state has no powers to issue orders on uniforms.
The Karnataka Advocate General, in a brief intervention, argued that the government had not issued any order prescribing uniforms but had left it to the discretion of the colleges. The AG told the court that the demand for allowing girls wearing hijabs in college classrooms had resulted in a counter demand by other students to attend classes with saffron, blue shawls and other marks of symbolism forcing the state to impose prohibitory orders around colleges.
Meanwhile, concern have been expressed over the alleged leakage on the social media the personal details, including phone numbers, of the six students from Karnataka’s Udupi district, who are fighting for the right to wear a hijab during classes. A police case has been filed.
The worried parents fear the leaked data could be used to threaten their children. These concerns come amid disturbing scenes that have emerged this week of frenzied mobs shouting and waving saffron scarves and flags as they confront young Muslim girls in colleges across several districts.
The Police Superintendent of Udupi district, N Vishnuvardhan, has confirmed that a written complaint has been made. ‘Appropriate action will be taken’ once documentary evidence of the leaked information was available, he said.
The students whose info was leaked are believed to be the same who first protested being denied the right to wear the hijab in class. Since then protests have spread, triggering pushback from right-wing groups and a political row with communal overtones.