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'One of the Judges Isn't Well': SC Says It Will Set up Bench to Hear Hijab Ban Pleas

'If the judges would have been alright, the matter would have come,' CJI Ramana said.
Supreme Court of India. Photo: PTI

New Delhi: The Supreme Court on Tuesday, August 2, said it would set up a bench to hear a batch of pleas challenging the Karnataka high court verdict refusing to lift the ban on hijab in educational institutions of the state, and added one of the judges was unwell leading to a delay.

A bench comprising Chief Justice N.V. Ramana and Justices Krishna Murari and Hima Kohli took note of the submissions of senior lawyer Meenakshi Arora, appearing for one of the appellants.

“I will constitute a bench. One of the judges is not well,” the CJI said.

Arora said that the appeals were filed way back in March against the high court order and they were yet to be listed for hearing.

“Wait. If the judges would have been alright, the matter would have come,” CJI Ramana then said, according to LiveLaw.

The top court on July 13 had agreed to hear the petitions challenging the Karnataka high court verdict on the issue. Lawyer Prashant Bhushan had then said that the girls are losing out on studies and have been facing difficulties.

There have been several news reports on the hijab ban affecting or disrupting girls’ education in the state.

In June, the Uppinangady Government First Grade College suspended 23 girl students who had staged a protest demanding permission to wear hijab inside classrooms. Recently, five Muslim girl students of the University College at Hampankatta in Mangaluru, which had also banned students from wearing hijab in classrooms, sought transfer certificates from the college administration in order to transfer to a different college.

The CJI had agreed to list the case the “next week.”

Prior to this, the appeals against the March 15 verdict of the high court, which had dismissed petitions seeking permission to wear hijab inside the classroom, were mentioned for urgent hearing on April 26 as well.

Several petitions have been filed in the apex court against the Karnataka high court verdict holding that wearing of hijab is not a part of the essential religious practice which can be protected under Article 25 of the Constitution.

The high court had dismissed the petitions filed by a section of Muslim students from the Government Pre-University Girls College in Udupi, seeking permission to wear hijab inside the classroom.

“The prescription of school uniform is only a reasonable restriction, constitutionally permissible which the students cannot object to,” the high court had said.

In one of the pleas filed in the top court, the petitioner said the high court has “erred in creating a dichotomy of freedom of religion and freedom of conscience,” wherein the court has inferred that those who follow a religion cannot have the right to conscience.

“The high court has failed to note that the right to wear hijab comes under the ambit of the right to privacy under Article 21 of the Constitution of India. It is submitted that the freedom of conscience forms a part of the right to privacy,” it said.

The plea said the petitioner had approached the high court seeking redressal for the alleged violation of their fundamental rights against the state government order of February 5, 2022, issued under Sections 7 and 133 of the Karnataka Education Act, 1983.

The high court had maintained that the government has the power to issue impugned order dated February 5, 2022, and no case is made out for its invalidation.

By the said order, the Karnataka government had banned wearing clothes that disturb equality, integrity, and public order in schools and colleges, which the Muslim girl students had challenged in the high court.

Challenging the February 5 order of the government, the petitioners had argued before the high court that wearing the Islamic headscarf was an innocent practice of faith and an essential religious practice and not a mere display of religious jingoism.

The petitioners had also contended that the restriction violated the freedom of expression under Article 19(1)(A) and Article 21 dealing with personal liberty.

(With PTI inputs)

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