[Hijab Ban] Plea in Supreme Court says wearing hijab is essential religious practice, does not offend right of any person

As reported earlier, a petition has been filed urging the Supreme Court to take up the controversy surrounding the Hijab Ban in Karnataka colleges, as a result of which protests have broken out across the country..Senior Advocate Kapil Sibal mentioned the matter before the Bench headed by Chief Justice of India NV Ramana today. However, the Court deemed it fit to let the Karnataka High Court decide the issue first..So why has the Supreme Court been approached even as a Full Bench of the Karnataka High Court is hearing the matter?.- Fundamental rights of petitioner under Articles 14, 19(1)(a), 21, 25 and 29 are being violated;- Issuance of the government order by the State is beyond the purview of its powers under the Karnataka Education Act, 1963, which has nothing to do with prescription of uniforms;- Wearing of hijab is an essential religious practice of a Muslim girl/woman;- A Muslim girl pursuing her education while wearing a hijab/headscarf offends no right of any person and militates against no State interest;- Petitioner and other students are being denied entry into colleges for over a week now; no interim relief from Karnataka High Court.- Issue has pan-India ramifications which necessitate the Supreme Court's interference..The petition has been filed by a student of Government PU College, Kundapura, in Karnataka's Udupi district. On why the apex court should take up the issue, it stated,"The issues raised in this petition are not only limited to the inhabitants of the State of Karnataka but also have pan India ramifications which necessitate the exercise of jurisdiction under Article 32 by this Hon’ble Court so as to authoritatively give a quietus to the matter and preserve the ethos of unity in diversity and tolerant and positive secularism envisaged in our Constitution.".The petitioner has claimed that her fundamental rights are being violated by the college debarring her and other Muslim students from attending regular classes until they remove their headscarf/hijab.The February 5 government order (GO) issued by the State government, by which college development committees were directed to prescribe school/college uniform for students, effectively resulting in the ban on wearing of hijab, has also been challenged. "...it is pertinent to also note that while the impugned G.O. questions the “essential” nature of the practice of wearing a hijab/headscarf by Muslim women, the issue of a religious practice satisfying the essentiality test is already pending consideration before a nine judge bench of this Hon’ble Court in Kantaru Rajeevaru v. Lawyers' Association," the plea stated.Moreover, it argued that the issuance of the GO by the State government is beyond the purview of its powers under the Karnataka Education Act, 1963."Section 7, which the State Government purportedly relies upon to direct the ‘college development committees’ to prescribe students’ uniforms is actually confined only to the prescription of curricula for any course of instruction, its duration, medium of instruction etc. The same has absolutely nothing to do with the prescription of uniforms......It is astounding as to how the Respondent No.1, State of Karnataka has turned the aforesaid provision which fosters inclusivity and unity in diversity, and uses it as a tool to exclude one of the most vulnerable sections of the country from attending classes.".It was further claimed that a Muslim girl pursuing her education while wearing a hijab/headscarf offends no right of any person and militates against no State interest. Therefore, even the essentiality test is wrongly invoked in the present facts, the plea stated. It goes on to contend how wearing of hijab is an essential religious practice of a Muslim woman. The right to wear a hijab can also be be traced to the rights guaranteed under Article 29 of the Constitution, it has been contended..The plea stated that though the Karnataka High Court has been hearing the matter, no relief seems to have come forth in the interim, even as the petitioner and other students are being denied entry into schools and colleges for over a week now. "This is all the more crucial since their final exams are only two months away and the action of the Respondents in preventing the Petitioner and similarly situated students from attending their regular classes, would dent their educational careers.".Another issue raised is that by deeming Muslims girls as a threat to public order, the State is deliberately perpetuating injustice and violation of their fundamental rights."The present incident and impugned G.O. are the latest in a long line of events that have threatened the secular fabric of our society and polity, a number of which are sub-judice before this Hon’ble Court and other Courts in the country."In this context, the challenge to the Citizenship (Amendment) Act, 2019, instances of cow vigilantism, laws prohibiting religious conversion and blatant calls for genocide of Muslims at events like the Dharam Sansad are cited..The petition has pointed out that other States under the same political dispensation are contemplating introducing similar laws."It is a bizarre situation where the victim of public disorder is being made to further suffer by the Respondent authorities while the ones who are actually causing the public disorder and pose a continuing threat to the hapless Muslim girls are being backed by the State machinery that has turned a Nelson’s eye on them, thereby absolving itself of its obligation to ensure a conducive environment for Petitioner and similarly situated girls to exercise their fundamental rights," the petitioner stated..On these grounds and others, the petitioner has prayed for a direction to set aside the GO and to declare it as being violative of Articles 14, 19 and 21 of the Constitution. The petitioner has also sought that she be permitted to attend classes wearing a hijab.

[Hijab Ban] Plea in Supreme Court says wearing hijab is essential religious practice, does not offend right of any person

Aditya AK

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