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KEY TAKEAWAYS

  • Recently, the Government of Karnataka (GoK), invoked the provisions of the Karnataka Education Act, 1983 prohibiting wearing the Hijab in classroom
  • Validating the ban, the Government stated that “clothes which disturb equality, integrity and public law and order should not be worn”
  • The State Government’s order placed reliance on the Kerala High Court verdict on the case of Fathema Hussain Syed v State of Kerala , although there are several judgments taking a contrary stance.
  • The Government stated that the ban on wearing Hijabs is not in violation of the fundamental right to religious freedom guaranteed under Article 25 of the Constitution
  • The Order came in ahead of the Karnataka High Court’s ruling on the matter scheduled from 8 February onwards.

INTRODUCTION

The GoK’s directive banning Muslim students from wearing a hijab in educational institutions has re-opened the debate on the issue of a Muslim woman’s right to wear the hijab. The choice of wearing (or not wearing) the hijab has consistently been at the centre of many a discussion before and has also been adjudicated by various High Courts. The current issue has snowballed into a major controversary and what started as a students’ fight to exercise their freedom of faith and religion has now taken a definitive political colour.

The present issue emanates from an order issued by the Karnataka Government invoking provisions of Section 133(2) of the Karnataka education Act, 1983 stating that school administrations are at will to decide a uniform and students must adhere to it. Wherever, uniforms aren’t decided, clothes disturbing “equality, integrity and public laws and order” must not be worn. There is a huge uproar on the matter by activists stating that it violates the freedom right of life and liberty to practice religion guaranteed under Article 14 and 21 of the Indian Constitution, respectively. Defending its action, a government representative opined that the ban must be looked beyond the lens of religion since auniform is a symbol of equality.

EPICENTRE OF THE PROTEST

The latest wave of the controversy around the issue of Hijab began when 6 students of Udupi district in Karnataka were denied entry into the classroom for wearing the Hijab. The protest against the college’s order started in Udupi and quickly gained momentum in parts of the statelike Vijayapura, Mangalore, Chikmagalur, Shivamogga, etc.

A petition has been filed by the girls studying in a government college in Udupi and a separate petition has also been filed by another girl in Bangalore . The petition seeks a declaration from the High Court that wearing the Hijab does not come in the way to the State’s duty to regulate public affairs and that they have a fundamental right to practice the essential tenet of their religion on college premises as well. The petition further contends that wearing the hijab cannot be a sole ground for denying entry in the educational premises and the State’s imposition of a rule banning the hijab is a violation of the fundamental right guaranteed under Article 25(1) of the Constitution.

The hearing for the matter began on amidst a state-wide uproar on the hijab controversy and is being heard by a Bench of Hon’ble Justice Krishna S Dixit. The Court hearing both sides of the argument on day one has adjourned the matter to the next day ie 9 February.

WHAT AND WHY OF THE HIJAB

The Hijab is a veil used by Muslim women for covering their head in the presence of any male member apart from their family. While there are divergent opinions on the compulsion by Holy Quran regarding wearing a hijab, most Islamic religious leaders and scholars are of the firm belief that the practice of wearing a hijab stems from the direct preaching of the Prophet. Reliance in this regard is usually placed on verse 31 of Chapter 24-64 (Surah An-Nur) of the Quran which reads as follows:

“31. And tell the believing women to lower their gaze and guard their chastity, and not to reveal their adornmentsexcept what normally appears.Let them draw their veils over their chests, and not reveal their ╦╣hidden╦║ adornmentsexcept to their….”

POSITION UNDER THE CONSTITUTION

Article 25(1) of the Constitution guarantees to all citizens the freedom of conscience and the right to freely profess, practice and propagate one’s religion. The State can impose reasonable restrictions on this right on grounds of public order, decency, morality, health and other provisions.

One of the most important tests to ascertain whether a particular belief/ practice is an inseparable part of the religion is the test of Doctrine of Essentiality. The Doctrine was tested by a seven-judge Bench of the Supreme Court in the case ofThe Commissioner of Hindu Religious Endowments, Madras v Sri Lakshmindra Thirta Swamiar of Sri Shrirur Mutt . In the instant case, the Hon’ble Supreme Court held that the word “religion” under Article 25 includes all rituals and practices that are integral to any religion and what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself

JURISPRUDENCE

The controversial and disputed order of issued by the GoK has referred to earlier decisions of the Supreme Court in the case of Asha Ranjan v State of Bihar and Ors and judgment of the Bombay High Court in the case of Fathema Hussain Syed v State of Kerala in support of its order to impose a ban on hijab.

In the case of Asha Ranjan v State of Bihar, the petitioner sought the transfer of the proceeding from Siwan, Bihar to Delhi. During the course of hearing and adjudication in the matter, the principles of fair trail were examined and highlighted by the court. The Court examined also examined the balance to be drawn between a victim’s rights and the accused/ convict’s right to free and fair trial. One of the observations of the court was the stress upon public interest and its significance and primacy over individual interest.

In the case Fathema Hussain Syed, the Hon’ble High Court of Kerala held that individual rights cannot find precedence over larger interest. The court observed that constitutional rights weren’t intended to protect a person’s right by annihilating the rights of other; the school, being a private institution has a right to establish, manage and administer its affair in accordance with Article 19 of the Constitution. The court called for prevalence of dominant interest over subservient interest. This ruling of the Kerala High Court is divergent from its earlier views expressed in the case of Nadha Raheem v Central Board of Secondary Education and Amna Bint Basheer v Central Board of Secondary Education . In the case of Nadha Raheem , the issue before the High Court was the dress code prescribed by the Central Board of Secondary Education (CBSE) for appearing in the All India Pre-Medical/Pre-Dental exam (AIPMT). Following the scrapping of AIPMT exam on ground of adoption of deceitful means, the Board, under new rules, allowed wearing of half sleeve kurta/ salwar only as a dress court for the exams. Aggrieved, two Muslim girls approached the High Court. In the verdict delivered by Hon’ble Justice K. Vinod Chandran, he remarked that given the religious diversity and of the country, a uniform dress code cannot be insisted upon. The Hon’ble Justice further refused to pass a blanket order on the dress code proposed by the CBSE leaving the choice of wearing the hijab with the students. He however made note that such students wishing to appear for the entrance in the hijab must make necessary arrangements to be present half an hour before and must not object to the invigilation, provided it is by a person from the same sex. However, the Hon’ble Justice’s comments on the hijab being an essential part of the religion were withheld.

The issue of dress code for appearing in the AIPMT entrance exams came up for hearing before the Kerala High Court, in the very next year, in the case of Amna Bint Basheer . This time, the Hon’ble High Court, relying on the Doctrine of Essentiality as laid out the Supreme Court in the case of Shrirur Mutt case, if the hijab forms an essential part of Islam, the same must be allowed. In arriving at a conclusion, Quranic injunctions and Hadiths were examined. It was further observed presence of conflicting views regarding the hijab based on independent reasoning cannot be a ground for denial of the claim of freedom to wear the hijab. Ruling in favor of the Petitioner, the Court also safeguarded the interest and apprehensions of CBSE with regard to malpractice and held that the invigilators can frisk such students and also demand their headscarf to be removed.

Drawing further support to the argument that the freedom and right to wear the hijab must be upheld, the observation of the Hon’ble Supreme Court in the celebrated case of Justice K.S. Puttaswamy v Union of India &Ors become relevant. In the instant case, the Court observed that what one should eat or how they should dress or whom they should be associated with is purely a matter of personal choice and falls within the realm of the Right to Privacy.

In a writ of Mandamus was filed before the Hon’ble High Court of Madras in the case of M Ajmal Khan v The Election Commissioner of India & Others , the constitutional validity of the Election Commission’s (EC) decision to put photograph of the voters on the electoral roll to prevent impersonation and eradicate bogus voting case was challenged. On the issue of use of photographs, especially of Muslim Gosha women, the Petitioner contended that such use is against the tenets of Islam and that the purdah forms and integral part of Islam. After analysing the stand of various scholars on the purdah being an essential part of Islam and earlier jurisprudence, in the matter the Hon’ble Court, dismissing the writ, held that the EC was well within its jurisdiction in prescribing a form for collecting the photographs of the voters.

CONCLUSION

From a critical analysis of the above judgements, it is clear that freedom to wear the hijab by exercising the right under Article 25 is available/ enforceable when an action by state is involved. However, with regards to private institutions, this right cannot be freely exercised but must be in adherence to the code of conduct of the institution. The hijab may not be allowed if the same is prohibited by the private institution.

It remains to be seen whether the Hon’ble High Court of Karnataka is in agreement to the ratio laid out by the Kerala High Court or it opines on the contrary.

With regards to the girls’ iron-willed fight with the State forces to exercise their fundamental right, one is reminded of the words of the father of the Indian constitution Dr. B.R. Ambedkar. He once wrote “the world owes much to rebels who would dare to argue in the face of the pontiff and insist that he is not infallible”.


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