Hijab not essential practice: Karnataka HC upholds hijab ban
A full-judge bench of the Karnataka High Court on Tuesday, March 15, dismissed all the student petitioners’ pleas against the ban on hijabs in educational institutions in Karnataka. A bench of the High Court comprising Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi, said, “We are of the considered opinion that wearing the hijab by Muslim women does not come under essential practices under Islam.” The court held that the Karnataka government has the power to prescribe a uniform, and the uniform is a reasonable restriction on fundamental rights which the students cannot object to.
The High Court also said that the Karnataka government has the power to prescribe uniform and held that no case has been made out to invalidate the Karnataka Government Order of February 5, which mandated a dress code. No case is made out in the writ petition for issuing a direction against the college as well, the High Court said. “In the above circumstances, all these petitions being devoid of merits are liable to be and are accordingly dismissed,” Chief Justice Ritu Raj Awasthi said, reading out the judgment.
The Karnataka High Court had reserved the judgment on February 25 after an 11-day hearing. Many interlocutory applications had been filed, but the HC asked them to file written submissions. During the hearing, the petitioners' counsels maintained that the government order banning the hijab does not have any legal standing. Appearing for a student, senior advocate Devadatt Kamat told the High Court that the government order mandating dress code is “illegal”. He submitted that it doesn't matter “whether I or anyone else feels it is regressive. The believer’s viewpoint matters.”
The students submitted that the hijab is an essential religious practice, and so the order banning it violated their fundamental right to practise religion and denied them the right to education. The petitioners also argued that the constitution of the College Development Committee (CDC), and the School Development and Management Committee (SDMC) do not have legal sanctity, and that there are educational institutions like Kendriya Vidyalayas where hijabs are allowed. Another petitioner’s counsel, senior advocate Ravivarma Kumar, submitted that Muslim girl students are being “singled out” and “are being kept out of class purely on the basis of religion”.
Another petitioner’s counsel, senior advocate Yusuf Muchhala, submitted to the court that when a right is claimed under Article 25, it does not need to be established as an essential religious practice. Freedom of conscience is different from freedom of religion, and the Article protects both those who believe in religion and those who don’t. “When the right is claimed under Article 25 and Article 19, what matters is the entertainment of a conscientious belief by an individual. When a right is claimed as a matter of conscience, it is not necessary to delve into the question of whether it is an integral part of religion,” he said.
Responding to the petitioners’ pleas, the Karnataka government, through Advocate General Prabhuling Navadgi, submitted that the wearing of the hijab is not an essential practice under Islam and that the state government has the authority to make decisions when it comes to public order, health, and morality. He also argued that the government has no role in taking decisions on the wearing of the hijab, and it is left to the discretion of the CDCs and SDMCs.
The AG submitted to the court that fundamental rights are individual in nature and are subject to restrictions. The AG also said that religious practices should be mandatory, and not optional, to qualify as an essential religious practice and that the petitioners must prove that hijab is an essential religious practice.
He also argued that wearing the hijab does not come under freedom of conscience — and that freedom of conscience and the right to religion are two different things. “Freedom of conscience is a mental concept. Right to religion is the external manifestation — through observance, rituals etc,” he said. He also said that allowing hijab under Article 25 will amount to compulsion where it will make a particular dress mandatory for women.
The AG also quoted the Supreme Court’s Sabarimala judgment to argue that the hijab does not stand the test of whether it upholds constitutional morality and individual dignity. “Is hijab acceptable today, in terms of constitutional morality and individual dignity?” he asked the court.
The counsel representing the college where the row began submitted to the bench that the row was started by the Campus Front of India (CFI) and that parents and students were being ‘instigated by the CFI'. The government then said it will submit intelligence inputs and reports on the role of CFI and other organisations, as the High Court sought to know the details of the organisation and how the issue was raked up all of a sudden.
The full bench of the High Court was constituted on February 9 on a petition filed by girls from Udupi who prayed that they should be allowed to wear the hijab even inside the classroom along with the school uniform as it was part of their faith. The bench had been hearing pleas against the hijab ban after Justice Krishna Dixit transferred the matter to a larger bench.
The hijab row started at the end of December last year when a few students wearing the hijab were barred from a government pre-university college in Udupi. On January 1, six girl students of a college in Udupi attended a press conference held by the CFI in the coastal town protesting against the college authorities denying them entry into classrooms wearing hijab. To counter this, some Hindu students in colleges started coming to their institutions wearing saffron scarves. The saffron protests spread to other parts of the state. The Karnataka government then banned both hijabs and saffron scarves, and said that till an expert committee decides on the issue all students must adhere to the uniform.
As protests grew from both sides, the state government declared holidays in high schools and colleges. During the hearing, the Karnataka High Court bench had issued an interim order, restraining students from wearing any kind of religious clothing, be it a headscarf or saffron shawls in high schools and colleges till the time the case was being heard in court. The High Court said that this was being done to maintain law and order, and peace, and said that this order applies only to those institutions which have a dress code that disallows the hijab.