The Karnataka High Court on Tuesday, March 15 dismissed the batch of pleas by student petitioners against the ban on wearing the hijab (headscarf) in classrooms. A bench of Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi said that the petitioners’ pleas against the hijab ban are ‘devoid of merit’ and so are not maintainable.
The High Court answered three broad questions on the hijab — if it is an essential religious practice; if prescribing a uniform violates fundamental rights, and whether the Karnataka government’s order on February 5, 2022 mandating a uniform is arbitrary and violates rights. Here are the salient points that the High Court bench made while dismissing the students’ pleas.
The Karnataka High Court held that the wearing of the hijab by Muslim women does not form a part of essential religious practice in the Islamic faith. The court cited the Holy Quran, that it “does not mandate wearing of hijab or headgear for Muslim women” and that “there is sufficient material in the Quran to support the view that wearing hijab has been only recommendatory.”
“At the most, the practice of wearing this apparel may have something to do with culture but certainly not with religion,” the court said, adding that because there is no punishment or penalty for not wearing hijab and that the apparel, at the most, is to gain access to public places and not a religious end in itself. “What is not religiously made obligatory, therefore, cannot be made a quintessential aspect of the religion through public agitations or by the passionate arguments in courts,” the High Court said.
The High Court also said that the petitioners have not placed any material on record to show that wearing hijab is an ‘act of conscience’ under Islam, to be protected under Article 25. Article 25 guarantees the right to freedom of conscience and free profession, practice and propagation of religion. The High Court said that merely stating that hijab is an ‘overt act of conscience’ and that removing the hijab may ‘offend this conscience’ would not be sufficient for treating it as a ground for granting relief to the petitioners. The court pulled up the petitioners for not explaining how wearing the hijab is associated with their freedom of conscience.
“There is no evidence that the petitioners chose to wear their headscarf as a means of conveying any thought or belief on their part or as a means of symbolic expression,” the HC said. “Petitioners have miserably failed to meet the threshold requirement of pleadings and proof as to wearing hijab is an inviolable religious practice in Islam and much less a part of essential religious practice,” the HC said.
The petitioners had argued that their fundamental rights are being violated by the ban on the hijab, but the High Court pointed out that there are reasonable restrictions to fundamental rights. The High Court held that these restrictions, which are imposed on the grounds of public order, morality, and health, will also cover those practices that are considered essential or vital under that religion.
“Schooling is incomplete without teachers, taught and the dress code. Collectively they make a singularity. No reasonable mind can imagine a school without a uniform,” the High Court said in its order. The HC said that the school has a duty to provide education and this includes the power to prescribe a uniform.
“The prescription of dress code for the students, that too within the four walls of the classroom as distinguished from rest of the school premises, does not offend constitutionally protected category of rights, when they are ‘religion-neutral’ and ‘universally applicable’ to all the students,” the High Court said.
The HC said that it does not have any quarrel with the petitioners’ essential proposition that what one desires to wear is a facet of one’s autonomy and that one’s attire is one’s expression. But all that is subject to reasonable regulation, the HC said.
The Karnataka High Court held that it is “too far-fetched” to hold that the school’s dress code goes against fundamental rights. The HC said that schools and colleges are ‘qualified public places,’ which predominantly impart educational instructions. In these qualified public places, the court inferred, individual rights which may go against general discipline and decorum take a backseat. The court gave the example of the rights of accused undertrials in jails, saying they “qualitatively and quantitatively are inferior to those of a free citizen”.
In ‘qualified public places,’ like schools, courts, war rooms, defence camps, etc., the freedom of individuals as of necessity is curtailed consistent with their discipline and decorum and function & purpose, the court said.
“Such ‘qualified spaces’, by their very nature, repel the assertion of individual rights to the detriment of their general discipline and decorum. Even the substantive rights themselves metamorphose into a kind of derivative rights in such places. These illustrate this: the rights of an undertrial detenue qualitatively and quantitatively are inferior to those of a free citizen. Similarly, the rights of a serving convict are inferior to those of an under-trial detenue,” the High Court said.
The High Court added that the regulation of basic fundamental rights is also a necessity, and it is a ‘small price’ for people to live in a civilised society.
“Though basic human rights are universal, their regulation as of necessity is also a constitutional reality. The restriction and regulation of rights be they fundamental or otherwise are a small price, which persons pay for being the members of a civilised community. There has to be a sort of balancing of competing interests i.e., the collective rights of the community at large and the individual rights of its members,” the court said in its judgment.
The High Court bench held that if the hijab is allowed to be a part of the uniform or a headscarf of the same colour of the uniform is allowed, then the school uniform will cease to be uniform.
“There shall be two categories of girl students — 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 High Court said. The court also said that it was not happy with the petitioners’ submission that even Kendriya Vidyalayas allow the hijab along with the uniform.
“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 the Centre,” the HC said.
The court then said that the government has the power to issue the order and that no case has been made out for its invalidation. The schools and the College Development Committees (CDCs) are also legally allowed to establish a dress code.
The HC added that it is not keen on a deeper discussion on the validity of the constitution and functioning of the CDCs, which have been granted the power by the Karnataka government to decide on the uniform. “Merely because these Committees are headed by the local Member of Legislative Assembly, we cannot hastily jump to the conclusion that their formation is bad.”
However, there may be some scope for the view that it is not desirable to have elected representatives of the people in such school committees. “One of the obvious reasons being the possible infusion of ‘party-politics’ into the campus. This is not to cast aspersion on anyone,” the HC added.
The High Court acknowledged a student’s submission that the GO was ‘hastily issued’ even though a high level committee was to decide on the issue. However, the court said governments do take certain urgent decisions which may appear to be knee-jerk reactions.
The HC spoke of the separation of powers, and that the government has the right to take an executive decision and the courts need not interfere every time.
“Whether a particular decision should be taken at a particular time is a matter left to the executive wisdom, and courts cannot run a race of opinions with the Executive, more particularly when policy content and considerations that shaped the decision are not judicially assessable. The doctrine of ‘separation of powers’ which figures in our Constitution as a ‘basic feature’ expects the organs of the state to show due deference to each other’s opinions,” the High Court said.
The prescription of school dress code by excluding religious clothing like the hijab, bhagwa, or any other apparel symbolic of religion can be a step forward in the direction of emancipation and access to education for women, the High Court said. “It hardly needs to be stated that this does not rob off the autonomy of women or their right to education inasmuch as they can wear any apparel of their choice outside the classroom,” the High Court said.
With this, the High Court dismissed all writ petitions against the ban on wearing hijabs in classrooms of educational campuses in Karnataka. The court also remarked that it is ‘dismayed’ that this issue came ‘all of a sudden in the middle of the academic term’.
“We are dismayed as to how all of a sudden that too in the middle of the academic term the issue of hijab is generated and blown out of proportion by the powers that be. The way hijab imbroglio unfolded gives scope for the argument that some ‘unseen hands’ are at work to engineer social unrest and disharmony.” The HC said that it has perused and returned copies of the police documents that were furnished in a sealed cover. “We expect a speedy & effective investigation into the matter and culprits being brought to book, brooking no delay,” the HC said.