The All India Muslim Personal Law Board has moved the Supreme Court challenging the March 15 order of the Karnataka High Court upholding the ban on wearing hijab in educational institutions, stating that it “deprives the constitutional rights of Muslim girls to practice Hijab along with the school uniform” and “curtails religious freedom and constitutional rights of Muslim women/girls”.
“The ground reality is that the petitioners are compelled to remove their hijab to avail the right of education, at the cost of self-respect and dignity”, said the petition filed by the Board and two “practising Muslim women” – Munisa Bushra Abedi and Jaleesa Sultana Yaseen – “who themselves wear hijab in public spaces in exercise of their Constitutional rights”.
The plea said that the contention raised by the petitioners before the high court “was that they should be allowed to wear a headscarf/hijab of the same colour of the uniform so that they may remain consistent with their fundamental right of conscience and expression…whether the petitioners are entitled, on the doctrine of proportionality and as a matter reasonable accommodation to wear hijab”.
The high court, it added, had however framed “totally erroneous questions which have distracted itself from the real issues arising out of the record before” with the result that “the discussions on diverse constitutional principles have resulted into conceptual overlapping leading to indirect discrimination”.
The core question raised before the high court was that while determining the claim of the petitioners of asserting the fundamental right of conscience under Article 25(1) of the Constitution, it is not necessary for them to justify the same on the ground that their assertion is part of essential religious practice, it said.
The high court had also “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 petition argued.
It is also a “case of direct discrimination against Muslim girls” and “also ignores the doctrine of reasonable accommodation”, the plea contended. It said the issues decided by the high court “widely impacts socio-religious ethos of the Muslim community” and “has widely opened the door of interference with the religious freedom guaranteed under the Constitution”.
The plea contended that the high court judgment “presents an erroneous understanding of the Islamic texts particularly the primary and highest source of Islamic law i.e., the Holy Quran”. It added that “as far as interpretation of scriptures in the Holy Quran are concerned there is a consensus amongst religious scholars of all schools of thought namely, Hanafi, Maliki, Shafai and Hambli that practice of Hijab is ‘wajib’ (mandatory), a set of obligations, which if not followed, he/she will commit “sin” or become a “sinner”. Wajib has been kept in the “First Degree” of obedience”.
On March 15, a full bench of the Karnataka High Court dismissed a batch of petitions filed by Muslim girls studying in pre-university colleges in Udupi seeking the right to wear hijabs in classrooms. The court ruled that wearing the hijab “does not make up an essential religious practice in the Islamic faith” and freedom of religion under Article 25 of the Constitution is subject to reasonable restrictions.