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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
RITU RAJ AWASTHI, KRISHNA S. DIXIT, J. M. KHAZI, JJ.
Smt Resham, D/O K Faruk - Appellant
Vs.
State of Karnataka, Represented By The Principal Secretary, Department Of Primary And Secondary Education - Respondent
Writ Petition No. 2347, 2146, 2880, 3038, 3424, 4309 & 4338 of 2022
Decided On : 15-03-2022
Constitution of India, 1950 - Articles 39(f) & 51(A), 19(2) and 19(1)(a) and 25 - Karnataka Education Act, 1983 - Section 133 r/w 7(2) & (5) - Karnataka Educational Institutions (Classification, Regulation and Prescription of Curricula, etc) Rules, 1995 - Rule 11 - Writ Of Quo Warranto – Interference in the administration of 5th respondent school – Essential religious practice - Right of Privacy and Freedom expression - Removal of hijab no essential practice in Islam - Validity Of Government Order Providing For Prescription Of Dress Codes In Educational Institutions - Prescription of school dress code – Whether wearing hijab/head-scarf is a part of ‘essential religious practice’ in Islamic Faith protected under Article 25 of Constitution - Whether prescription of school uniform is not legally permissible, as being violative of petitioners Fundamental Rights inter alia guaranteed under Articles, 19(1)(a), (i.e., freedom of expression) and 21, (i.e., privacy) of Constitution - Whether the Government Order apart from being incompetent is issued without application of mind and further is manifestly arbitrary and therefore, violates Articles 14 & 15 of Constitution - Whether there is power to prescribe dress code in educational institutions – Petitions filed by a petitioner – girl student, the 1st, 3rd & 4th respondents happen to be State Government & its officials, and 2nd respondent happens to be Government Pre–University College for Girls - Seeking direction to respondents to permit petitioner to wear hijab (head – scarf) in the class room, since wearing it is a part of ‘essential religious practice’ of Islam.
Finding of the court:
There is no legal bar for the School Betterment (Development) Committees to associate with the process of such prescription. However, there may be some scope for the view that it is not desirable to have elected representatives of the people in the school committees of the kind, one of the obvious reasons being the possible infusion of ‘party-politics’ into the campus. This is not to cast aspersion on anyone. We are not unaware of the advantages of the schools associating with the elected representatives. They may fetch funds and such other things helping development of institutions. This apart, no law or ruling is brought to our notice that interdicts their induction as the constituent members of such committees – Government has power to issue impugned Order and that no case is made out for its invalidation - Petition is apparently ill-drafted and pleadings lack cogency and coherence that are required for considering serious prayers of this kind. Court have already commented upon Departmental Guidelines as having no force of law. Therefore, question of said respondents violating same even remotely does not arise. Court have also recorded a finding that college can prescribe uniform to the exclusion of hijab or bhagwa or such other religious symbols, and therefore, alleged act of respondents in seeking adherence to school discipline & dress code cannot be faltered. Absolutely no case is made out for granting prayers or any other reliefs on basis of these pleadings - Respondent Nos.15 & 16 do not hold any such position in the respondent-school. Their placement in College Betterment (Development) Committee does not fill public character required as a pre-condition for the issuance of Writ of Quo Warranto – Court are dismayed as to how all of a sudden that too in middle of the academic term the issue of hijab is generated and blown out of proportion by the powers that be. The way, hijab imbroglio unfolded gives scope for the argument that some ‘unseen hands’ are at work to engineer social unrest and disharmony. Much is not necessary to specify. Court are not commenting on the ongoing police investigation lest it should be affected. We have perused and returned copies of the police papers that were furnished to us in a sealed cover. We expect a speedy & effective investigation into the matter and culprits being brought to book, brooking no delay.
Result: Petitions dismissed
ORDER :
This judgment, we desire to begin with what Sara Slininger from Centralia, Illinois concluded her well researched article “VEILED WOMEN: HIJAB, RELIGION, AND CULTURAL PRACTICE-2013”:
“The hijab’s history…is a complex one, influenced by the intersection of religion and culture over time. While some women no doubt veil themselves because of pressure put on them by society, others do so by choice for many reasons. The veil appears on the surface to be a simple thing. That simplicity is deceiving, as the hijab represents the beliefs and practices of those who wear it or choose not to, and the understandings and misunderstandings of those who observe it being worn. Its complexity lies behind the veil.”
Three of these cases namely W.P.No.2347/2022, W.P.No.2146/2022 & W.P.No.2880/2022, were referred by one of us (Krishna S Dixit J.) vide order dated 09.02.2022 to consider if a larger Bench could be constituted to hear them.
The Reference Order inter alia observed:
“All these matters essentially relate to proscription of hijab (headscarf) while prescribing the uniform for students who profess Islamic faith…The recent Government Order dated 05.02.2022 which arguably facilitates enforcement of this rule is also put in challenge. Whether wearing of hijab is a part of essential religious practice in Islam, is the jugular vein of all these matters...The said question along with other needs to be answered in the light of constitutional guarantees availing to the religious minorities. This Court after hearing the matter for some time is of a considered opinion that regard being had to enormous public importance of the questions involved, the batch of these cases may be heard by a Larger Bench, if Hon’ble the Chief Justice so decides in discretion…In the above circumstances, the Registry is directed to place the papers immediately at the hands of Hon’ble the Chief Justice for consideration...”
Accordingly, this Special Bench came to be constituted the very same day vide Notification dated 09.02.2022 to hear these petitions, to which other companion cases too joined.
I. PETITIONERS’ GRIEVANCES & PRAYERS BRIEFLY STATED:
(i) In Writ Petition No. 2347/2022, filed by a petitioner – girl student on 31.01.2022, the 1st, 3rd & 4th respondents happen to be the State Government & its officials, and the 2nd respondent happens to be the Government Pre–University College for Girls, Udupi. The prayer is for a direction to the respondents to permit the petitioner to wear hijab (head – scarf) in the class room, since wearing it is a part of ‘essential religious practice’ of Islam.
(ii) In Writ Petition No. 2146/2022 filed by a petitioner–girl student on 29.01.2022, the 1st, 3rd & 4th respondents happen to be the State Government & its officials and the 2nd respondent happens to be the Government Pre – University College for Girls, Udupi. The prayer column has the following script:
“1. Issue the WRIT OF MANDAMUS and order to respondent no 1 and 2 to initiate enquiry against the Respondent 5 college and Respondent no 6 i.e. Principal for violating instruction enumerated under Chapter 6 heading of “Important information” of Guidelines of PU Department for academic year of 2021-22 same at ANNEXURE J for maintaining uniform in the PU college.,
2. Issue WRIT OF MANDAMUS to Respondent no 3 conduct enquiry against the Respondent no 6 to 14 for their Hostile approach towards the petitioners students.,
3. Issue WRIT OF QUO WARRANTO against the Respondent no 15 and 16 under which authority and law they interfering in the administration of Respondent no 5 school and promoting their political agenda. And,
4. DECLARE that the status quo referred in the letter dated 25/01/2022 at ANNEXURE H is with the consonance to the Department guidelines for the academic year 2021-22 same at ANNEXURE J…”
(iii) In Writ Petition Nos.2880/2022, 3038/2022 & 4309/2022, petitioner – girl students seek to lay a challenge to the Government Order dated 05.02.2022. This order purportedly issued un
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