Bengaluru: The single bench of the Karnataka High Court on Wednesday refused to pass interim orders permitting female students to attend colleges wearing hijab and referred the matter to a larger bench.
"Having regard to the enormity of questions of importance which are debated, the court is of the considered opinion that the papers be put at the hand of the Chief Justice to decide if a larger bench can be constituted in the subject matter," Justice Dixit noted in his order.
Even interim prayers merit consideration at the hands of a larger bench that may be constituted by the Chief Justice, he noted. Considering the above circumstances, Justice Dixit ordered the Registry to place the papers before the Chief Justice for consideration immediately, considering the urgency.
The judge said that it was open for petitioners to seek interim relief after a decision is taken by the Chief Justice regarding a larger bench. Advocate General Prabhuling Navadgi opposed the grant of interim relief, arguing that the interim order at this stage will amount to allowing the petition.
He further argued that the petitions are misconceived and the state does not take a decision on dress code. "The petitions ... have questioned the government order. I want to tell my learned friend (Senior Advocate Devdatt Kamat) that each institution has been given autonomy and the state does not have any say in matters of dress code," he argued.
Navadgi also argued that hijab does not form an integral part of religious practice. To back this argument, he submitted that though the Kerala High Court upheld the right to wear hijab, it recognised there can be a different view.
"Is wearing a hijab an essential religious practice? This has become a larger issue and everybody is looking up to the court for a decision," he submitted.
Senior Advocate Sanjay Hegde, counsel for one of the petitioners, appealed to the bench to award students interim relief, while the matter was referred to a larger bench.
He argued that there were only two months left of the academic year and therefore it would not be in the interest of the petitioners to be deprived of attending classes.
"There is a need to find a way that no girl child is deprived of education. What is important today is peace. The Constitutional fraternity returns to the college. No heavens will fall for two months," he appealed.
Senior Advocate Sajan Poovayya, the counsel for a College Development Committee, appealed to the court to give its verdict after hearing the parties, as questions raised in the writ petitions are falling under Justice Dixit's roster.
The question before the Court in this matter is whether wearing of hijab is part of essential religious practise of Islam and is state interference in such matters is warranted.
The court is also called to consider whether wearing of hijab partakes the character of right to expression under Article 19(1)(a) of the Constitution and whether restriction can be levied only under Article 19(2).
On Tuesday, Kamat, who is the counsel for one of the petitioners, had submitted that wearing of hijab is an essential part of Islamic religion and it is protected by right to expression under Article 19(1)(a) and can be restricted only on grounds under Article 19(6).
He also submitted that wearing hijab is a facet of the right to privacy recognised as part of Article 21 by the Puttaswamy judgment of the Supreme Court.
The court eventually appealed to the student community and the public at large to maintain peace and tranquillity in the wake of protests against the government order. (UNI)
