Updated: March 17, 2022 11:39:55 am
The Karnataka High Court on Tuesday (March 15) upheld the restriction on Muslim women wearing a hijab in educational institutions. A three-judge bench comprising Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and Khazi M Jaibunnisa, held that the right to wear a hijab is not constitutionally protected.
Condensing the submissions made during the 11-day hearing in February, the High Court said that it had formulated four broad questions, taking a holistic view of the matter. The court answered all four questions in negative.
“Whether wearing hijab/headscarf is a part of ‘essential religious practice’ in Islamic Faith protected under Article 25 of the Constitution”, which guarantees the right to religious freedom:
The court held that there is no “Quranic injunction” on wearing the hijab and that wearing the hijab is not “religion-specific”. The court’s inquiry, it said, was to ascertain whether wearing the hijab is so essential that if not followed, one could not practise the religion.
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“It is not that if the alleged practice of wearing hijab is not adhered to, those not wearing hijab become the sinners, Islam loses its glory and it ceases to be a religion,” the court said.
The Bench looked at decisions by other High Courts on the hijab, including decisions by the Kerala High Court and concluded that they are irrelevant to the present case.
The court said that the petitioners did not present sufficient evidence to prove that wearing a hijab is an essential religious practice of Islam. It said the material presented was “extremely meager”, and the petitioners’ averments were “vague”.
“The respondents are more than justified in contending that the Writ Petitions lack the essential averments and that the petitioners have not loaded to the record the evidentiary material to prove their case. The material before us is extremely meagre and it is surprising that on a matter of this significance, petition averments should be as vague as can be. We have no affidavit before us sworn to by any Maulana explaining the implications of the suras quoted by the petitioners’ side,” the court said.
“Whether prescription of school uniform (by educational institutions) is not legally permissible, as being violative of petitioners’ Fundamental Rights…guarantees under Articles 19(1)(a) (i.e., freedom of expression), and 21 (i.e., privacy) of the Constitution”:
It is well established that schools may prescribe the dress that students should wear, the court said.
“There has been an overwhelming juridical opinion in all advanced countries that in accord with the general principle, the school authorities may make reasonable regulations governing the conduct of pupils under their control and that they may prescribe the kind of dress to be worn by students or make reasonable regulations as to their personal appearance, as well,” it said.
While the petitioners’ argument was specifically about allowing students to wear hijab of a structure and colour that suited the prescribed dress code so they could continue their education, the court stressed on the institution’s right to prescribe a dress code.
“We are not impressed by this argument. Reasons are not far to seek: firstly, such a proposal if accepted, the school uniform ceases to be uniform. There shall be two categories of girl students viz., those who wear the uniform with hijab and those who do it without. That would establish a sense of ‘social-separateness’, which is not desirable. It also offends the feel of uniformity which the dress-code is designed to bring about amongst all the students regardless of their religion & faiths,” the court said on the “principle of reasonable accommodation”.
On the example of Kendriya Vidyalayas allowing the headscarf, the court said that states need not follow the Centre. “What the Kendriya Vidyalayas prescribe as uniform/dress code is left to the policy of the Central Government. Ours being a kind of Federal Structure…, the Federal Units, namely the States need not toe the line of Center,” it said.
The court added that “…it hardly needs to be stated that the uniform can exclude any other apparel like bhagwa or blue shawl that may have the visible religious overtones”.
“Whether the Government Order dated 05.02.2022 apart from being incompetent is issued without application of mind and…is manifestly arbitrary and therefore violates Articles 14 & 15 of the Constitution” (equality before law and non-discrimination):
The Karnataka government order issued on February 5 under the Karnataka Education Act, 1983, said that colleges can restrict students from wearing the hijab. Along with “unity” and “intergrity”, the order cited “public order” as one of the grounds for not allowing students to wear a headscarf in educational institutions.
The petitioners had asked the state to show how the mere wearing of a hijab by students could constitute a public order issue. “This is not a case where a religious practice involves a public gathering where dangerous weapons are paraded…,” counsel for petitioners Devadatt Kamat had argued.
The court, however, appeared to suggest that the words in the government order must not be construed literally.
“We hasten to add that certain terms used in a Government Order such as ‘public order’, etc., cannot be construed as the ones employed in the Constitution or Statutes. There is a sea of difference in the textual structuring of legislation and in promulgating a statutory order as the one at hands. The draftsmen of the former are ascribed of due diligence & seriousness in the employment of terminology which the government officers at times lack whilst textually framing the statutory policies,” the court said.
Quoting Oscar Wilde, the court said that there is room for improvement even in heaven. It agreed with the government’s submission that “the impugned order could have been well drafted…”.
The petitioners had also argued that the government order suffered from material irregularity as the rulings of other HCs cited by the government did not lay down the ratio, which the government wrongly stated that they did. The court recorded that it had already discussed the HC decisions referred to in the government order at another place (paragraph X, “As to views of other High Courts on hijab being an essential religious practice”), “and therefore, much need not be discussed here”.
In any case, the court said, “if the Government Order is otherwise sustainable in law, which we believe it does, the challenge thereto has to fail for more than one reason: The subject matter of the Government Order is the prescription of school uniform. Power to prescribe, we have already held, avails in the scheme of the 1983 Act and the Rules promulgated thereunder. Section 133(2) of the Act which is broadly worded empowers the government to issue any directions…which obviously includes the authority to prescribe school dress code.”
Whether any case is made out against the lecturers and principal of the college in Udupi where the hijab controversy first began:
This was a contention raised in one of the writ petitions filed by advocate Tahir Mohammad, associated with SDPI, the political outfit of the Popular Front of India (PFI). The petition sought action against the principal and teachers of the college for violating the departmental guidelines which prohibit prescription of any uniform, and for their hostile approach.
The court rejected the contention, saying: “The petition is apparently ill-drafted and pleadings lack cogency and coherence that are required for considering the serious prayers of this kind. We have already commented upon the Departmental Guidelines as having no force of law. Therefore, the question of the said respondents violating the same even remotely does not arise.”
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