Observations of the court

The Bombay High Court observed that the dress code prohibiting students from wearing hijab, nakab, burka, stole and cap on the campus is in the student’s larger academic interest.

The court referred to the case of Miss Fathema Hussain, a minor v. Bharat Education society and Ors., where in the Bombay High Court in 2003 held that, merely asking the students to maintain the dress code by not wearing a hijab does not violate the students’ fundamental right of freedom of conscience and free profession.

“Reference can be made to the judgment of the Coordinate Bench in Miss Fathema Hussain, a minor Vs. Bharat Education Society and Ors., AIR 2003 BOM 75, wherein a direction issued by the Principal of a High School to a girl student that she could not attend classes wearing head scarf was under challenge. On behalf of the student, it was urged that the direction issued by the Principal was violative of her fundamental right of freedom of conscience and professing, propagating and practicing Islam religion. Considering such challenge, it was held that by merely asking the student to maintain the dress code prescribed by the school, it could not be said that the student’s fundamental right of freedom of conscience and free profession, practice and propagation of religion was violated. There was no breach of the provisions of Article 25 of the Constitution of India” the court said.

The court referred to the infamous Karnataka High Court judgment wherein, a government order banned hijabs in schools and colleges across Karnataka, in this case it was held that this is not violation of Article 25 of the constitution of India.

“In its detailed judgment, the Full Bench held that prescribing such dress code did not result in violation of any fundamental rights as claimed under Article 19(1)(a) and Article 25 of the Constitution of India. It was held that the dress code when prescribed for all students was intended to treat them as one homogeneous class so as to serve constitutional secularism. The object of prescribing a uniform code would be defeated if there was non uniformity in the matter of uniforms”

“We are in respectful agreement with the view expressed by the Full Bench that prescription of a dress code is intended to achieve uniformity amongst students in the school/college so as to maintain discipline and avoid disclosure of one’s religion” said the court.

The court then referred to the case of, Fatima Thanseem (Minor) and another vs. The State of Kerala and others, wherein the court held that an individual cannot seek imposition of his/her fundamental right as against the larger right of the educational institution.

“We may also note that a similar challenge to prescription of dress code by which head scarf and full sleeve shirt prescribed for girl students was the subject matter of challenge before the Kerala High Court in Fatima Thanseem (Minor) and another vs. The State of Kerala and others, (2019) 1 KLT 208. It was held that though there may be a fundamental right for a student to choose a dress of his/her own choice, there was also a fundamental right of establishing, managing and administering an educational institution. Between competing rights, an individual could not seek imposition of his/her fundamental right as against the larger right of the educational institution. On this premise, the challenge was turned down”

The court went on to say that regulation of a dress code is an exercise towards maintaining discipline at the Institution, and this right flows from Article 19(1)(g) and Article 26 of the Constitution of India.

The court then held that, prescription of the dress code by the college does not offend the provisions of Article 19(1)(a) and Article 25 of the Constitution of India.

“We do not find as to how the prescription of the dress code by the College offends the provisions of Article 19(1)(a) and Article 25 of the Constitution of India. The object behind prescribing the dress code is evident from the Instructions since they state that the intention is that a student’s religion ought not to be revealed. It is in larger academic interest of the students as well as for the administration and discipline of the College that this object is achieved. This is for the reason that students are expected to attend the educational institution to receive appropriate instructions for advancement of their academic careers” 

The court further held that the college’s dress code did not violate UGC (Promotion of Equity in Higher Educational Institutions) Regulations, 2012, and other educational policies aimed at promoting non-discriminatory environments.

The order of the court can be read here:

Conclusion

The Bombay High Court’s decision upholding the hijab ban in colleges is a miscarriage of justice. While the court argues that the dress code is in students’ best interests and promotes uniformity, it fails to consider the fundamental right to freedom of religion and expression.

The court cites previous rulings where dress codes were upheld. However, these cases involved schools and uniforms. A dress code is different from a uniform. In this case, what the court has failed to take note of is that, the dress code is disproportionately affecting only female Muslim students of the college.

Further, the court argues that the dress code promotes secularism. However, secularism does not require the erasure of religious identity.  Ultimately, the court’s decision forces women to choose between education and religious practice, this is a violation of their fundamental rights and a gross miscarriage of justice.

Related:

Nine Muslim students petition Bombay HC, college’s ban on hijab violates fundamental rights

Students challenge Hijab ban, college defends secular dress code – Bombay HC to rule on June 26^th

Hijab ban case: K’taka HC concludes hearing, reserves judgement

Right to Education under attack: Are the Courts misguided in treating the hijab ban case as simply a religious issue?

Hijab ban case: Hijab in line with freedom of expression, submits petitioner

The post Bombay High court upholds hijab ban in colleges: Muslim students’ rights curtailed appeared first on SabrangIndia.

A similar dispute occurred In early February 2022,  in the  state of Karnataka concerning school uniforms. The issue began when some Muslim students attending a junior college were denied entry because they wanted to wear hijab to classes. The college argued that this violated their uniform policy, which was also followed by students of other religions. In the weeks that followed, the dispute spread to other schools and colleges in the state, with Hindu students staging counter-protests and demanding to wear saffron scarves. On February 5, 2022, the Karnataka government issued an order stating that uniforms must be worn compulsorily where policies exist, with no exception allowed for the wearing of hijab. Subsequently, several educational institutions cited this order and denied entry to Muslim girls wearing the hijab.

The matter reached High court where court ruled  in favour of  government order on hijab ban in the schools 

On March 15, 2022, the Karnataka High Court upheld the ban on hijab by educational institutions, stating that it is not an essential religious practice in Islam and, therefore, not protected under Article 25 of the Constitution guaranteeing the right to practice one’s religion.

To arrive at this decision, the High Court conducted its own investigation by referring to The Holy Quran: Text, Translation, and Commentary by Abdullah Yusuf Ali, which was previously used by the Supreme Court of India in the Shayara Bano case 2017 9 SCC 1. According to Ali’s commentary, the Quran recommended hijab as a measure of social security to address cases of “molestation of innocent women” during the time of Jahiliya (pre-Islamic era) and not as a religious practice essential to the Islamic faith.

To read the judgement – https://www.verdictum.in/pdf_upload/wp2347-2022-1337422.pdf

Later the issue went to Supreme Court where a split verdict was seen and the matter is yet to be heard by a larger bench of 5 judges.

Justice Dhulia stated that determining whether the hijab is an essential religious practice under Islam or not was not crucial for resolving the dispute. He firmly believed that if the belief is sincere and harmless to others, there should be no justifiable reason to ban hijab in a classroom. According to him, the petitioners were asserting their individual rights, not community rights.

Courts should not get involved in resolving theological questions, as there are multiple religious views on such matters. They must not interfere when constitutional boundaries are breached or unjustified restrictions are imposed.

Justice Dhulia disagreed with the Karnataka High Court’s flawed understanding that the petitioners couldn’t assert their fundamental rights in a public place like a classroom. He found it odd to compare a school with a war room, emphasizing that discipline should not come at the expense of dignity and freedom. Forcing a schoolgirl to remove her hijab at the school gate invaded her privacy and dignity, violating Article 19(1)(a) and Article 21 of the Constitution. He stressed that the right to dignity and privacy was inherent and not derivative, referencing the Puttaswamy[i] judgment and Justice D.Y. Chandrachud’s observations on the link between privacy and human dignity.

Justice Gupta, on the contrary, upheld the Karnataka High Court’s perspective that the hijab did not constitute an essential religious practice. However, Justice Dhulia believed that the court should not have engaged in this debate at all, emphasizing that it should have first examined whether the restriction by the GO (Government Order) was valid or “hit” by the doctrine of proportionality. Justice Gupta argued that discipline was a crucial aspect of learning for students in schools, and going against rules would contradict the essence of discipline. While students had the right to education under Article 21, this did not grant them the right to insist on wearing additional religious attire as part of their uniform in a secular school. Furthermore, Justice Gupta emphasized that uniforms played a role in creating equality among students. Allowing one faith to wear specific religious symbols would undermine the principle of secularism, and the right to education remained accessible, leaving it to the student’s choice to avail it or not. He asserted that the freedom of expression under Article 19(a) did not extend to the headscarf, supporting the idea that the Karnataka GO(government order) promoted an equal environment. Anything worn by students under their shirts could not be deemed objectionable in terms of the issued GO(government order) Justice Gupta stressed that religion should have no significance in a secular school operated by the State, and promoting fraternity as a constitutional goal would be compromised if students were allowed to bring religious symbols into the classroom. He concluded that none of the fundamental rights were absolute and should be interpreted collectively as a whole.

To read the judgement – https://www.livelaw.in/pdf_upload/75-resham-v-state-of-karnataka-15-mar-2022-412165.pdf

Impact of the issue in Karnataka

Following the High Court’s verdict upholding the hijab ban in government schools, numerous female students either faced rejection or chose not to appear for their class 10^th and 12^th board exams. In August 2022, six months after the ban was imposed, an RTI response disclosed that 145 out of 900 (16%) female Muslim students from government and aided colleges in Dakshina Kannada and Udupi districts, which were at the epicentre of the hijab controversy, obtained transfer certificates. Among these students, some enrolled in colleges where hijab was allowed, while others refrained from admission due to financial constraints in paying the college fees. The percentage of transfer certificates was higher in government colleges (34%) compared to aided colleges (8%).

A study published by the human rights body, People’s Union for Civil Liberties (PUCL), indicated that the hijab ban exacerbated social divisions and instilled fear among Muslims in Karnataka.

The court’s failure to consider the downside is evident as it overlooks the fact that Muslim women are among the least educated communities in the country. The notion of positive discrimination, which allows for certain rights or practices to benefit a community’s education, seems to have been disregarded. This issue goes beyond the hijab or a mere piece of cloth; it is fundamentally about education. Incidents like these, on the rise, foster a sense of disaffection among the masses and contribute to their further isolation. To put a stop to such occurrences, the judicial responsibility must be carried out with utmost respect and sensitivity. In times of communal division, it becomes crucial to deliver judgments and implement policies that prioritize education and the development of communities, rather than contributing to their alienation.

[i]  https://frontline-thehindu-com.cdn.ampproject.org/v/s/frontline.thehindu.com/news/understanding-the-split-verdict-on-hijab-ban/article66014782.ece/amp/?amp_gsa=1&amp_js_v=a9&usqp=mq331AQIUAKwASCAAgM%3D#amp_tf=From%20%251%24s&aoh=16910933589231&referrer=https%3A%2F%2Fwww.google.com&ampshare=https%3A%2F%2Ffrontline.thehindu.com%2Fnews%2Funderstanding-the-split-verdict-on-hijab-ban%2Farticle66014782.ece

https://m-thewire-in.cdn.ampproject.org/v/s/m.thewire.in/article/rights/very-frightening-to-enter-campus-alone-muslim-students-recount-hijab-bans-impact/amp?amp_gsa=1&amp_js_v=a9&usqp=mq331AQIUAKwASCAAgM%3D#amp_tf=From%20%251%24s&aoh=16910962964404&referrer=https%3A%2F%2Fwww.google.com&ampshare=https%3A%2F%2Fthewire.in%2Frights%2Fvery-frightening-to-enter-campus-alone-muslim-students-recount-hijab-bans-impact

https://en.m.wikipedia.org/wiki/2022_Karnataka_hijab_row#:~:text=After%20a%20hearing%20of%20about,essential%20religious%20practice%20in%20Islam.

https://www.verdictum.in/pdf_upload/wp2347-2022-1337422.pdf

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