|Case No.||WP No 2347/2022||Date of Filing||31/01/2022||Status||Disposed||Petitioners||1. SMT RESHAM 2. SRI MUBARAK||Respondents||1. STATE OF KARNATAKA 2. GOVERNMENT PU COLLEGE 3. DISTRICT COMMISSIONER 4. THE DIRECTOR, KARNATAKA PRE-UNIVERSITY BOARD DEPARTMENT|
The Petitioners, pre-university Muslim students had filed W.P No. 2347/2022 challenging the Karnataka State Government’s Order dated 05.02.2022 which gave a directive that the uniform or dress code prescribed by the College Development Committees (CDCs) shall be mandatorily followed by the students. Pursuant to this, many colleges banned female students from wearing hijab within the premises/classrooms. The petitioners had challenged this Government Order and sought for the ban of hijab to be lifted in Pre-University Colleges in Karnataka.
The Petitioners challenged the said Government Order as being unconstitutional as per articles 14, 15, 19, 21 and 25 of the Constitution of India, that it is an essential religious practice and also that the hijab ban was a violation of Article 19(1)(a) since it affected the freedom to dress, which is a part of freedom of speech and expression.
On 10.02.2022 the Hon’ble High Court issued an interim order restraining all students, irrespective of their faith or religion from wearing any religious attires including hijab, scarf, saffron shawls, etc. within the classrooms in institutions where a uniform or dress code was prescribed.
Intervention Application by Women’s Voice
In this case, CLPR filed an intervention application on behalf of Women’s Voice, a registered public charitable trust working for women’s rights working in areas of safeguarding rights for marginalized women, including rural women, migrant women, Adivasi and Dalit women, and others in Karnataka and across the country.
The Intervention application submitted that the Government Orders violated Article 14 since it led to an unequal impact on Muslim women and hence is discriminatory against them. The Applicant relied on the Supreme Court’s verdict in the case of Nitisha v. Union of India (AIR 2021 SC 1797) wherein it was stated that substantive equality should ensure that equality is not based on a like for like approach but must address the structural forms of discrimination and must encompass special or positive measures. It argued that the Order also amounts to sex discrimination under Article 15 of the constitution and that the current case is one of intersectionality since it discriminates on the basis of religion and sex and is hence violative of Article 15(1). The Applicant further contended that the prohibition of women wearing hijabs from entering colleges would lead to a violation of the right to education which has been recognized as a right under Article 21 in several cases including Mohini Jain v. State of Karnataka (1992 SCR (3) 658), Unni Krishnan v. The State of Andhra Pradesh (1993 SCR (1) 594), among others.
The Karnataka High Court heard the arguments of both the parties and delivered its judgment on March 15th, 2022. They upheld the ban issued by the State Government, stating that wearing a hijab did not qualify as an essential religious practice and the ban did not violate the Freedom of Speech and Expression.
This litigation blog post was co-authored with Muskan Bhuteria, an Intern from Jindal Global Law School.