The Karnataka high court has restrained students from wearing saffron shawls, scarves, hijab and any religious flag within the classroom. The court also made it clear the order was confined to such of the institutions wherein the College Development Committees have prescribed the student dress code or uniform.
The three-judge bench has said it was pained by ongoing agitations and closure of educational institutions over the past few days, especially when the court is seized of the matter and issues of constitutional significance and personal law are being debated.
“Ours is a country of plural cultures, religions and languages,” the bench said. “Being a secular state, it does not identify itself with any religion as its own.
Every citizen has the right to profess and practise any faith of choice. However, such a right, not being absolute, is susceptible to reasonable restrictions as provided by the Constitution. 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. ”
The court said that in a civilized society like India, no person can be permitted to disturb public peace and tranquillity in the name of religion, culture or the like.
“The interest of 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. We hope and trust that all stakeholders and the public at large shall maintain peace and tranquillity,” the bench observed. During a hearing that spanned two hours on Thursday, senior advocate Sanjay Hegde, who appeared for the petitioner-students from a Udupi college, argued that the Karnataka Education Act,1983, does not have any provision which permits educational institutions to prescribe a uniform forstudents.
He said the Karnataka Educational Institutions (Classification, Regulation & Prescription of Curricula, etc. ) Rules, 1995, apart from being incompetent, are not applicable to pre-university institutions since they were promulgated basically for primary and secondary schools.
He contended that the rules do not provide for the imposition of a penalty if one violates the dress code and expulsion of students for violating the dress code would be grossly disproportionate to the alleged infraction.
Hegde told the court that all stakeholders should show tolerance and catholicity so that girl students professing and practising the Islamic faith can attend classes with hijab and institutions should not insist upon the removal of hijab as a condition for gaining entry to classrooms.
In his submissions, senior advocate Devadatta Kamat, who appeared for two students from a Kundapur college, contended that the decisions of the Kerala, Madras and Bombay high courts have been wrongly construed by the government while structuring the February 5 circular relating to the dress code. He said the government’s stand that hijab is not a part of essential religious practice of the Islamic faith shows gross non-application of mind.
He said the government has no authority or competence to issue such an order or circular mandating college development committees to prescribe a uniform for students. Kamat said dress and attire are a part of speech and expression and the right to wear hijab is a matter of personal privacy; institutions cannot compel anyone to remove it.
In his brief response, advocate-general Prabhuling K Navadgi submitted that no prima facie case has been made out for the grant of interim relief.
He said there were several counter-agitations and students wanted to gain entry to institutions with saffron and blue shawls and other such symbolic clothes and religious flags. Consequently, he said, the government had to clamp prohibitory orders around educational institutions.
Navadgi said the order under challenge per se does not prescribe any uniform, since uniforms are the domain of institutions. “The agitation should end immediately and peace and tranquillity should be restored,” he said.