Hijab Row: Plea filed in Supreme Court challenging Karnataka High Court verdict

Challenging the verdict of the Karnataka High Court in the Hijab matter, six Muslim girls knocked on the doors of the Supreme Court on Tuesday alleging that the court had passed the order without applying its mind.

Filing a Special Leave Petition, the students alleged that the HC had 'erred in creating a dichotomy of freedom of religion and freedom of conscience'. It also asserted that the order failed to note that the Karnataka Education Act, 1983, and the Rules made thereunder, do not provide for any mandatory uniform to be worn by students.

"The Petitioner submits that the Hon’ble High Court has failed to note that there does not exist any provision in law which prescribes any punishment for students for not wearing uniforms. Even if one were to presume that there existed a mandate to wear a particular uniform, there is no punishment prescribed in case a student does not wear the uniform," the Special Leave Petition read. 

'GO beyond scope of powers, wearing Hijab protected under 19(A)'

Further, the petitioners alleged that there was no provision under the Karnataka Education Act, 1983, that allowed the formation of a 'College Development Committee' or gave it powers to regulate the wearing of a uniform or any other matter in an educational institution. "The order dated 05.02.2022 issued by the State is beyond the scope of powers under Section 133 (2) of the Act. It seeks to supplant, and not supplement the provisions of the Act," it said.

"The Hon’ble High Court has failed to note that the right to wear a Hijab comes under the ambit of ‘expression’ and is thus protected under Article 19(1)(a) of the Constitution. It is submitted that clothing and appearance fall within the ambit of the right of expression guaranteed under Article 19(1)(a) of the Constitution," it added. 

It also asserted that the HC order had not recognized that the right to wear a Hijab is protected as a part of the right to conscience under Article 25 of the Constitution. "It is submitted that since the right to conscience is essentially an individual right, the ‘Essential Religious Practices Test’ ought not to have been applied by the Hon’ble High Court in this instant case," it said. 

Claiming that the government order was 'passed an indirect intent of attacking the religious minorities, the petition stated that this step-motherly behaviour of Government authorities has prevented students from practising their faith which had, in turn, resulted in 'an unwanted law and order situation'.

Karnataka HC dismisses Hijab row plea

Dismissing the plea on Tuesday morning after nearly two weeks of deliberation, the Karnataka High Court noted that the '(school/college) uniform is a reasonable restriction' levied by the educational institution. It also stated that the Government is empowered to issue such an order on dress code, noting 'no case made out for its invalidation'. 

The Chief Justice noted, "First question is whether Hijab is an essential religious practice and is guaranteed under Article 25. Another question is whether the Government is arbitrary and violates Article 14&15 of the Constitution".

In response, the HC maintained, "Hijab is not an Essential Religious Practice. The uniform is a reasonable restriction. We are of the considered opinion that no case is made out in the Writ Petitions".