Hijab ban case: K’taka HC refers case to larger bench; denies interim relief to students

Karnataka HC Image Courtesy:english.madhyamam.com

The Karnataka High Court’s single judge bench of Justice Krishna Dixit has deemed that the Muslim girls’ petition challenging government Colleges’ ban on the hijab in class, be considered by a larger bench. Justice Dixit has noted that the matter gives rise to constitutional questions of seminal importance qua personal law which ought to be decided by a larger bench.

“Having regard to the enormity of questions of importance which are debated, the court is of the considered opinion that the papers be put at the hand of the Chief Justice to decide if a larger bench can be constituted in the subject matter,” ordered the court

In the interim, the petitioners had sought for directions to allow them to attend the classes wearing the hijab but the same was denied stating that the same will be considered by the larger bench.

Background

Since December last year, the hijab or the headscarf, ordinarily worn by Muslim girls and women has become a matter of controversy in Karnataka. In Udupi, Government Women’s PU college banned hijab-clad girls from entering classrooms. This mindless opposition to the hijab then emerged in other areas namely Kundapura, Udupi and Bhadravathi, Shivmogga where members of the Akhil Bharatiya Vidyarthi Parishad (ABVP) gathered wearing saffron scarves and protested against the veil.

This led to the Karnataka government’s decision on February 8, to shut all schools and colleges for 3 days

Matter in court

The petitioner has contended that it is her right to wear a hijab as it is an essential religious practice under Islam, and the State is not empowered to interfere with such rights under Article 14,19 and 25 of the Constitution. Senior Advocate Devadatt Kamat appeared for the petitioner and made references to the Quran verses, a few relevant Kerala High Court and Madras High Court judgements as also the Government Order which stated that the restriction imposed on the hijab does not violate Article 25 of the Constitution.

At the outset the government tried to wash its hands off the controversy when the Advocate General submitted that “College Committees decide the uniform. If any student wants relaxation, let them approach the Committees.” To this Kamat retorted and brought forth the G.O. which stated that the restriction imposed on the hijab does not violate Article 25 of the Constitution.

Interim relief

On the first day of the hearing, on February 8, the petitioners had urged the government to show some generosity and allow the students to wear hijab of the same colour as the uniform at least till the exams are over. However, the government said it was the decision of the College committee and refused to interfere with the same; while making no reference to its own G.O. that placed the restriction in the first place.

State’s objection

The state government submitted that it was only concerned with maintaining uniformity and equality among students. In its statement of objection, the state said, “In educational institutions, students should not be allowed to wear identifiable religious symbols or dress code catering to their religious beliefs and faith. Allowing this practice would lead to a student acquiring a distinctive, identifiable feature which is not conducive for the development of the child and academic environment.”

Points of law

The points of law noted by the court in the February 8 hearing were:

The wearing of Headscarf (hijab) is part of essential religious practices, as prescribed by the Holy Quran and therefore the State cannot direct against Quranic injunctions.
The wearing of hijab partakes the character of right to expression under Article 19(1)(a) and the restriction can be levied only under Article 19(2) as held by the Supreme Court.
The grounds on which the impugned order has been structured are not relatable to those permitted under Article 19 (2)
Right to wear falls within the privacy right recognised by Puttaswamy jurisprudence, and therefore the impugned order not taking cognisance of this is not right.
The State has no competence to issue the GO on dress code as per the Karnataka Education Rules. The GO is beyond the jurisdiction of the state.

Hijab as essential practice

Kamat referred to Verse 24.31 of Holy Quran, and verse 24.33 to submit that these talk about headscarf or veil over head as essential religious practice. Kamat argued that it was not for the state to decide whether it is a religious practice or not but the bench opined, “Constitutional Law allows constitutional authorities to function as per the constitution. The state can make orders, but might be based on assumptive conclusions. Of course, citizens can challenge. We have not adopted doctrine of separation of powers strictly.”

Not a public order issue

Kamat emphasised that the right to wear comes under the right to freedom of speech and expression under Article 19(1)(a) and “public order” cannot be a reasonable threshold to restrict the same. He further contended that the State has no competence to issue the GO on dress code as per the Karnataka Education Rules and is thus, beyond the jurisdiction of the state. He also submitted that the state should exercise its powers in tandem with the fundamental rights and not hinder people from exercising their rights.

“A girl going to school wearing a headscarf, how can it be a public order issue? We are not trying to incite anybody or create disturbance. Right from admission we have been quietly practising our faith. Now to give a colour of public order this is an attempt to put the cart before the horse. Every practise of religion if the state wants can give the colour of public order,” Kamat said, as reported by LiveLaw.

He also pointed out how it had suddenly become an issue and there was no issue when the petitioner joined college and in all these years such an issue had not cropped up.

Religious apartheid

Kamat equated this restriction on wearing hijab in educational institutions to religious apartheid while pointing out that the girls were allowed to enter the premises but were made to sit in a separate hall, thus amounting to segregation which further violates Article 14 of the Constitution.

Reference to High Court judgements

Kamat referred to the Kerala High Court judgement whereby the court declared hijab as essential religious practice of Islam and allowed two Muslim girl students to wear it while appearing for the CBSE All-India Pre-Medical Entrance Test (AIPMT) and had observed thus, “In a nation like India that has diverse religions, it cannot be insisted that a particular dress code mandated by a religion should be avoided so as to sit for the examinations”. The court had concluded that it is a ‘farz’ to cover the head and wear the long sleeved dress except for the face part, and that exposing the body otherwise is ‘haram’ (forbidden). It was also held that there are possibilities of different views and opinions but that alone is not a ground to deny freedom, if the propositions have some foundation in faith.

Kamat pointed out that the G.O. had relied upon a Kerala High Court judgment in Fathima Thasneem vs The State Of Kerala (WP(C).No. 8020 of 2011(B); decided on March 15, 2011), where the court had refused to direct a private school to allow Muslim students to wear head scarves. However, he stated that the case was in a different context since the school was a minority institution run by Christian management. The court had given Article 30 giving the right to minority institutions a higher pedestal than the right of an individual under Article 25.

Another case relied upon in the G.O. was Bombay High Court judgement in Fatheema Hussain Sayed v. Bharat Education Society (WP No. 1096/2002; Decided on August 2, 2002) which was related to a girls school and the court held that it was not mandatory for a Muslim girl to cover her head while studying in an all-girls school.

On the other hand, Kamat bought the court’s attention to a judgment passed by Madras High Court in M.Ajmal Khan vs The Election Commission Of India (WP No. 26841/2006; decided on September 7, 2006) where the court held the headscarf or hijab to be an essential part of Islam.

Positive secularism

Kamat stated that India followed positive secularism where the State creates an environment where we respect practice of all religions.

Now that the matter is to be referred to a larger bench for considering constitutional questions of seminal importance qua personal law, it is expected that it will be a long drawn proceeding. One can only hope that the bench considers it imperative to grant interim relief to allow the girls to attend classes with the hijab so as not to hinder their right to education and so that they are able to complete their academic year.