'Hijab Not Essential Religious Practice': Why Karnataka HC Upheld Uniform Rules
The matter was heard by a three-judge bench headed by Chief Justice Ritu Raj Awasthi.
Video Editor: Puneet Bhatia
Dismissing the petitions filed by Muslim girl students, seeking protection of their right to wear hijab in educational institutions in Karnataka, the Karnataka High Court on Tuesday, 15 March, said:
"We are of the considered opinion that wearing of hijab by Muslim women does not form a part of essential religious practice in Islamic faith... The prescription of school uniform is only a reasonable restriction that is constitutionally permissible which the students cannot object to."
The high court also held that the Karnataka government had the power to pass the order it did on 5 February, stating that students would have to wear uniforms and that there was no case made out for its invalidation. There were no grounds for disciplinary inquiries against school authorities which had denied entry to Muslim girls for failing to wear uniforms either.
"The school regulations prescribing dress code for all the students as one homogenous class, serve constitutional secularism," the court further said in its judgment.
Meanwhile, calling it a "bad judgment," senior advocate AM Dhar, one of the counsels for petitioners in the case told ANI that they will challenge it before the Supreme Court.
On the Significance of Hijab in Islamic Faith
Observing that "there is sufficient intrinsic material within the scripture itself to support the view that wearing hijab has been only recommendatory," the Court claimed:
"No material is placed before us for evaluation and determination of pleaded conscience of the petitioners. They have not averred anything as to how they associate wearing hijab with their conscience, as an overt act. 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 court also said that "it can hardly be argued that hijab being a matter of attire, can be justifiably treated as fundamental to Islamic faith."
On School Uniforms
"It hardly needs to be stated that schools are ‘qualified public places’ that are structured predominantly for imparting educational instructions to the students. Such ‘qualified spaces’ by their very nature repel the assertion of individual rights to the detriment of their general discipline and decorum."Karnataka High Court
The court also claimed that even the substantive rights themselves metamorphose into a kind of derivative rights. To further back the point the court gave the example of the rights of a serving convict are inferior to those of an under-trial detainee.
"By no stretch of imagination, it can be gainfully argued that prescription of dress code offends students’ fundamental right to expression or their autonomy," the court said.
"The aim of the regulation is to create a ‘safe space’ where such divisive lines should have no place and the ideals of egalitarianism should be readily apparent to all students alike."Karnataka High Court
The court added that school uniforms promote harmony and spirit of common brotherhood which goes past religious or sectional diversities.
On 'Unseen Hands'
Expressing dismay over how the hijab row suddenly erupted in the middle of the academic term, the court said:
"The way, hijab imbroglio unfolded gives scope for the argument that some ‘unseen hands’ are at work to engineer social unrest and disharmony."
However, the court also added that in view of the same, they were of the opinion that no case is made out for issuance of a direction for initiating disciplinary enquiry against the various colleges where the incidents appeared to have taken place.
The 11 Days of Hearing
After 11 days of hearings, the bench had reserved judgment in the case on 25 February.
Over the course of the hearing, the petitioners, as well as the state government, had presented a slew of arguments, leaving the court to deliberate over several interconnected issues, including:
Whether wearing the hijab is an 'Essential Religious Practice' or not in Islam
Whether the state can interfere in such matters
Whether the choice to wear a hijab is protected under the right to freedom of expression and the right to privacy
Ahead of the judgment, Section 144 was imposed in parts of Karnataka.
The Karnataka High Court, in an interim order dated 10 February, had refused to allow Muslim girls to attend classes wearing their headscarves until final adjudication in the matter, after several Muslim girls (including one of the girls from Udupi, who was barred from attending classes) filed petitions requesting the protection of their rights.
What Did Petitioners Argue?
Challenging the government order, the key arguments made by the petitioners' lawyers pertained to essential religious practice, freedom of conscience, and hostile discrimination.
"The State is an outside authority, it cannot say that wearing a headscarf is an essential practice or not. It has to be seen from the viewpoint of a believer," senior advocate Devdatt Kamat had explained.
Kamat had also lamented that "their (female Muslim students') right to education, which is paramount, is being put on the back burner."
What Did the State Argue?
The key argument of the Karnataka government through advocate general Prabhuling Navadgi, as noted earlier, was that wearing hijabs was not an essential religious practice in Islam.
Quoting from the apex court judgment in Mohd Hanif Quareshi and Others vs The State Of Bihar to establish that "the very fact of an option seems to run counter to an obligatory duty," Navadgi had said:
"What is optional is not compulsory. What is not compulsory is not obligatory. What is not obligatory is not essential."
'Honour the Decision,' Says CM
Soon after the verdict, CM Basavaraj Bommai asked all to maintain “peace and order” and allow students to attend classes. "Education is more important than anything else," he said.
"I request the public to honour the decision of the court and not to continue anything further and abide by the decision.”CM Basavaraj Bommai
Meanwhile, Karnataka Education Minister BC Nagesh said that shortfalls of the Education Act will be set right to standardise uniforms soon.
According to ANI, he also expressed happiness over the Karnataka High Court verdict.
"I request to the girls who went to the court should follow the judgment, education is more important than any other things," he said.
The Hijab Row
In December 2021, six hijab-clad Muslim students belonging to Udupi's Government Pre-University College for Girls were barred from attending classes. The institute's purported reason: "No religious activity will be allowed on campus."
The girls were marked absent for at least three weeks before they protested the ban on 31 December, saying "though it is our constitutional right, they are still not allowing us to go in the class because we are wearing the hijab."
The students subsequently filed a writ petition in the Karnataka High Court, and also approached the National Human Rights Commission.
Meanwhile, triggered by the increasing resistance, Hindu students donned saffron scarves as a symbol of their opposition to the hijab, while the number of institutions that prohibited the headscarf continued to increase across Karnataka.
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