The Karnataka High Court's refusal on 10 February to grant any interim protection to hijab-wearing Muslim girl students has been criticised for ignoring settled legal principles for protection of fundamental rights and grant of interim relief.
Instead of saying the students could wear their headscarves to class while the court decides whether a ban on hijabs violates their fundamental right to practice their religion, the court said in an interim order that while the petitions were being heard:
"We restrain all the students regardless of their religion or faith from wearing saffron shawls (Bhagwa), scarfs, hijab, religious flags or the like within the classroom, until further orders."Karnataka HC order at para 10
Over the course of the last week, as educational institutions have reopened across Karnataka, reports have come in that this order has been cited to turn away hijab-wearing girl students not just from government-run pre-university colleges (where this controversy originated), but from schools and degree colleges as well.
But is this application of the high court's interim order correct? Which educational institutions does it apply to?
While the wording of the order mentioned above is ambiguous enough to apply to students in any educational institution, the high court did include a clarification at the end. In paragraph 11, it says:
"We make it clear that this order is confined to such of the institutions wherein the College Development Committees have prescribed the student dress code/uniform."
The order restricting students from wearing clothing of religious significance therefore does NOT apply to all educational institutions in Karnataka.
The Quint spoke to Karnataka Educational Department authorities to understand which institutions will be covered by the order based on this clarification.
College Development Committees are monitoring bodies set up for government-run pre-university colleges (ie the equivalent of Classes 11 and 12 in high school) and government-run degree colleges (ie colleges offering undergraduate degrees). CDCs are headed by the local MLA and 10 members nominated by them.
CDCs do not have jurisdiction over government-aided colleges or private colleges.
The interim order banning religious clothing like hijabs only applies to institutions where CDCs have prescribed student dress codes or uniforms.
The CDCs for degree colleges do not prescribe uniforms, so it cannot apply to degree colleges or higher education institutions – this was acknowledged by Karnataka Chief Minister Basavaraj Bommai and Higher Education Minister CN Ashwath Narayan.
“The Higher Education Minister has stated the facts. He has said that dress code is applicable where the rules exist and it is not there for higher education institutions or Degree colleges.”Karnataka CM Basavaraj Bommai in Assembly on 16 February according to PTI
As a result, the only institutions the interim order can apply to are government-run PU colleges – and even here, not to all of them. It is only where the relevant CDC for the PU college has prescribed a uniform, that a ban on hijabs etc can be justified using the high court's interim order.
If a CDC has not prescribed any uniform or dress code, then the PU colleges within its jurisdiction cannot turn away any girls wearing hijabs by citing the court order.
The court order can certainly NOT be used as a ground to deny entry to any school (till Class 10) for a hijab-wearing Muslim girl student.
To sum up, while the high court's interim order can be used to justify hijab bans in certain government-run PU colleges, it CANNOT be used to justify hijab bans in the following:
Government-run degree colleges and institutes of higher education
Government-aided and private colleges of all levels
Schools up till Class 10
It should perhaps be noted that the Karnataka government order dated 5 February, on the other hand, has been framed widely enough to apply to not just PU colleges, but schools as well. However, as its validity is being considered by the high court, it would be shaky grounds to deny entry to any hijab-wearing Muslim students.
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