The All India Muslim Personal Law Board (AIMPLB) in its appeal filed in Supreme Court against March 14, 2022 judgment of the Karnataka High Court, which ruled that wearing of Hijab is not an essential religious practice and the uniform was a reasonable restriction, has accused Karnataka government of issuing the government order to “appease” groups which were “heckling Muslim girl students”.
The AIMPLB said the GO was blatantly partisan, communal in colour and meant to meet the demand of the “hecklers” and it was issued when heckling “escalated to a larger scale”.
AIMPLB’s stand came even as the three-judge bench of the Karnataka HC led by Chief Justice Ritu Raj Awasthi while answering the Question -Whether the Government Order dated 05.02.2022 apart from being incompetent is issued without application of mind and further is manifestly arbitrary and therefore, violates Articles 14 & 15 of the Constitution? answered, “We are of the considered opinion that the government has the power to issue the impugned Order dated 05.2.2022 and that no case is made out for its invalidation.”
Said the appeal filed by AIMPLB through Supreme Court advocate M R Shamshad: “The entire arguments and submissions by all the parties before the High Court revolved around the legality and effect of the Government Order issued by the State of Karnataka on 05.02.2022 which came into public domain subsequent to heckling by religious groups of the Muslim girls practicing Hijab while attending schools/colleges. Certain sporadic groups started heckling Muslim girl students practicing Hijab in December 2021 and when the heckling escalated on to a larger scale, the Government of Karnataka issued the impugned Government Order dated 05.02.2022, making an issue of direct discrimination of selectively chosen class of girls by directly referring to “headscarf or a garment covering the head” not being violative of Article 25. The G.O. dated 05.02.2022 Is on the face of it blatantly partisan and communal in colour appeasing to hecklers’ demand.
KEY GROUNDS CITED IN CHALLENGE TO HC ORDER
ISSUED FRAMED WRONG: Firstly, after the conclusion of the hearing, the four issues wrongly framed by the High Court do not address the core issue viz. whether or not it is necessary to consider the doctrine of essential religious practice where the Petitions have asserted their Fundamental Rights under Article 25(1) and 19(1)(a) of the Constitution and consequentially it resulted into the verdict which deprives the constitutional rights of Muslim girls to practice Hijab along with the school uniform.
ENCROACHMENT ON RELIGIOUS BELIEF
- : Secondly, while deciding the said issues, the High Court has laid too much emphasis on propositions which results in discrimination, exclusion and overall deprivation of a class from the mainstream public education system apart from the fact it seriously encroaches upon an individual’s sacrosanct religious belief.
TOO MUCH EMPHASIS ON UNIFORMITY: Thirdly, the idea of bringing uniformity cannot be placed on such a high pedestal which amounts to negation of other constitutional and basic rights of different groups which run al through our Constitution vein.
- DIRECT DISCRIMINATION: Fourthly, it is a case of direct discrimination against Muslim girls. The High Court has created a distinction between the principles laid down in the case of Bijoe Emmanuel by giving different contextual meaning (as a case of discipline) and on the other hand, the practice of Hijab, is reflected as if it was a case disturbing the entire uniform that too when this minor variation (of covering the head like the Sikh’s do) can be reasonably accommodated within the constitutional norm being part religious practices.
- TRAVESTY OF JUSTICE: Hence laying too much emphasis on bringing “uniformity” in the uniform without accommodating a person of one religion ‘to cover her hair with a piece of cloth’ is travesty of justice. The impugned judgment also ignores the doctrine of reasonable accommodation.
