AIMPLB moves SC against HC order on hijab, says it is discrimination against Muslim girls

NEW DELHI: The All India Muslim Personal Law Board (AIMPLB) along with two other petitioners has moved the Supreme Court against the Karnataka High Court judgement that upheld the ban on wearing hijab in educational institutions of the state.

"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 practise hijab along with the school uniform," said the petition.

"Secondly, while deciding the said issues, the High Court has laid too much emphasis on propositions which results into 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...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,” the petition added.

The petition has contended that it is a case of direct discrimination against Muslim girls. “The High Court has created 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 Sikhs do) can be reasonably accommodated within the constitutional norm being part religious practices. 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,” the plea has said.

The plea states that the determination of essentials under the principles of essential religious practice (ERP) had started with the idea of determination of essential religious practice that fell within the complete autonomy of the religious denomination in the matters of deciding as to what rites and ceremonies are essential according to tenets of a religion.

 “Over a period of time, it appears that the courts have completely taken upon themselves the task to determine what are the essentials and integrals of any and every religion practiced in our country for the purpose of regulatory control over them by the state authorities,” it reads.

“While dealing with the issue of protection of the fundamental rights, the impugned judgment has given completely erroneous interpretation to the concept of intelligible differentia by grouping all the students in uniformity without acknowledging that such interpretation is not only against the prevailing practices in different parts of the country but also such accommodations are generally available for differently grouped students. It is completely irrational and against the objective of maintaining diversity as contemplated in the Constitution of India,” the petition has argued.

Islamic clerics organisation "Samastha Kerala Jem-iyyathul Ulama" has filed a special leave petition in the Supreme Court against the HC order challenging the same on the basis of wrong interpretation of Quran.

Several petitions have been filed in the apex court against the Karnataka High Court order. Last week, Chief Justice of India (CJI) NV Ramana had refused urgent listing of the matters.

Upholding the government order dated February 5, 2022, banning the hijab in classrooms, a full bench of Chief Justice Ritu Raj Awasthi, Justices Krishna S Dixit and Justice JM Khazi of the Karnataka High Court had pronounced the verdict on a cluster of petitions questioning the order passed by the state government banning the wearing of hijab in classrooms.

The high court bench had also maintained that the government has power to issue the 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 which disturb equality, integrity and public order in schools and colleges, which the Muslim girls had challenged in the High Court. The bench also rejected the plea to initiate a disciplinary inquiry against the college, its principal and a teacher.

"In the above circumstances, all these writ petitions being devoid of merits are liable to be and accordingly are dismissed. In view of the dismissal of the writ petition, all the pending applications fell into insignificance and are accordingly disposed off," the bench had said in its order.

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