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New Delhi: Contending that Indians flaunt diverse religious symbols, from the pendant to the hijab to the bindi and turban, lawyers appearing for the Muslim girl students who are opposing the hijab ban in Karnataka asked why the government was “picking” on the headscarf alone and making “this hostile discrimination.”
Prescribing uniforms in pre-university colleges is illegal, the lawyer said, adding, the College Development Committee (CDC) headed by the MLA concerned has no powers to decide on the issue.
Citing a survey, petitioner girls’ counsel Ravivarma Kumar said people of the country sport various religious symbols such as pendant, crucifixion, hijab, burqa, bangles, bindi on the forehead and the turban.
“I am only showing the vast diversity of religious symbols in all sections of the society. Why is the government picking on hijab alone and making this hostile discrimination? Aren’t bangles religious symbols?” Kumar told the full bench of the high court comprising Chief Justice Ritu Raj Awasthi, Justice J.M. Khazi and Justice Krishna S. Dixit.
Questioning why no other religious symbol was considered in the government order and only the hijab, the senior counsel wondered whether that was done because of his petitioners’ faith.
“My submission is that if people wearing turban can be in the Army, why not a person sporting a religious symbol be allowed to attend classes… judicial note is to be taken that Muslim girls are least represented in classrooms. If they are shut out on this pretext it will be very draconian,” Kumar argued.
“This discrimination against Muslim girls is purely on the basis of religion and hence a hostile discrimination, which violates Article 15 of the Indian constitution. We are not heard but straightaway punished,” he argued.
Kumar told the court that the purpose of education is to promote plurality and not homogeneity.
“Classrooms should be a place for recognition and reflection of the diversity in society,” he contended.
According to LiveLaw, Kumar relied on Supreme Court judgments in NALSA vs Union of India (on transgender rights), Navtej Singh Johar vs Union of India (which struck down Section 377 IPC), Rosamma AV vs University Of Calicut. The latter, he said, emphasised that “unity in diversity” should be the motto.
Regarding the ban on hijabs, he said that according to rule 11 of the 1995 rules – government provisions related to the Education Department – the educational institutions should give notice to the students and parents about changing the uniform at least a year in advance.
Stating that a dress code is not mandatory for the pre-university colleges, Kumar said, “prescribing uniform in the government pre-university college is illegal. Even the guidelines issued by the PU Education department in 2021-22 did not speak about uniform.”
“It is an emphatic statement by the department that principals cannot prescribe a uniform. Neither the pre-university board and the rules nor the Karnataka Education Act prescribe any uniform or prohibition of hijab. Such being the case, under what authority are we kept out of the class,” he asked on behalf of the girls.
According to LiveLaw, the bench asked if the guidelines of the Education Department has any force of law. Kumar responded that he was not seeking to enforce the guideline but only trying to show that there was no uniform prescribed for PU college students.
Justice Dixit asked if merely because something is not prohibited in the rules explicitly, does it mean that it is permitted. According to LiveLaw, he asked
“If that view is taken, somebody may say there is no license required to carry arms in the classroom as there is no prohibition. I am logically analysing what your proposition can take us to…There is no prohibition to carry kirpan if it is not prescribed. However, the power to prescribe under Rule 9 is there. That needs to be independently argued.”
The government order said the students should wear a uniform prescribed by the CDC headed by MLAs concerned, which meant that it has delegated its administrative powers to the legislators.
The CDCs, according to Kumar, were constituted by way of a circular in 2014 and not any government order.
He further told the bench that the CDCs were constituted for utilising grants as well as maintaining education standards. This CDC was not for students welfare but only for academic standards, he contended.
Questioning the formation of CDCs, Kumar argued the MLAs in the CDCs have been given administrative powers.
“The MLA cannot be entrusted with administrative powers. He is only the representative of people to hold the government accountable.”
“Giving administrative powers to the MLAs will be a death knell to our democracy. The MLAs should be fearless on the floor of the House. They cannot be made subordinate to the Government,” he added.
Stating that the legislators represent a political party and a political ideology, Kumar sought to know how can students’ welfare be entrusted to a political party and a political ideology.
“The formation of such a committee itself is a death blow to our democracy and the doctrine of the separation of power. Don’t allow the committee to handle the welfare of students and check them out of the classrooms,” the senior counsel said.
The court adjourned hearing of the case to Thursday.
(With PTI inputs)