New Delhi: The Karnataka High Court Tuesday held that wearing of hijab by Muslim women does not form a part of essential religious practice in Islamic faith.
A three-judge bench led by Chief Justice Ritu Raj Awasthi upheld the Udupi Pre-University (PU) Government college order prescribing school uniform that banned hijab, as well as the Karnataka government’s 5 February order that extended its support to the restriction.
According to the bench — also comprising Justices Krishna S. Dixit and J.M. Khazi — the restriction on hijab is “reasonable” and constitutionally permissible, which the students cannot object to.
“There is absolutely no material placed on record to prima facie show that wearing of hijab is a part of an essential religious practice in Islam and that the petitioners have been wearing hijab from the beginning,” the court held.
Rejecting the petitioners’ challenge to the PU college’s jurisdiction to prescribe a uniform, the court said: “No reasonable mind can imagine a school without uniform.” Further, hijab ban, as part of a school dress code, did not invalidate the petitioners’ constitutionally-protected right, because the code is not “sectarian” and is equally applicable to all students, regardless of their religion and background, said the court.
The verdict came on a bunch of petitions questioning the hijab ban for Muslim girls in Udupi’s PU college and an order by the Karnataka government on 5 February that obliquely supported the ban.
The bench had heard the matter for 11 days before it reserved the verdict on 25 February. On 11 February, the court had passed an interim order, restraining students from displaying religious clothing in school classrooms, applicable to only those schools that prescribed uniforms for its students. With Tuesday’s order, the court’s interim order stands vacated.
Suspecting some “unseen hands” triggered the “hijab imbroglio”, the bench Tuesday observed that the PU college had followed a dress code since 2004, but never faced any opposition before.
“We are also impressed that even Muslims participate in the festivals that are celebrated in the ‘ashta mutt sampradāya’, (Udupi being the place where eight Mutts are situated),” added the judges.
“Dismayed” as to how all of a sudden in the middle of the academic term the issue was blown out of proportion by the “powers that be,” the court noted the police are probing the matter and urged it to expedite the investigation.
“We expect a speedy and effective investigation into the matter and culprits being brought to book, brooking no delay,” it said, without commenting on the merits of the probe.
“In view of the above, we are of the considered opinion that the government has the power to issue the impugned government order dated 5 February, 2022 and no case is made out for its invalidation,” the court said Tuesday, adding no case is also made out to initiate disciplinary enquiry or issuance of quo warranto against college officials or state government.
“Accordingly, in the above circumstances all these petitions being devoid of merits are liable to be and accordingly are dismissed,” ordered the bench, rejecting all applications filed in the matter.
Meanwhile, one of the student petitioners has already moved the Supreme Court against the HC verdict, ThePrint has learnt.
Soon after the verdict was announced, advocate for the petitioners in the hijab row had said they will soon move the Supreme Court and the girls will “continue their education while exercising their rights to wear hijab”.
Questions about constitutional rights
The hearing in the case witnessed formulation of crucial questions related to constitutional rights, including that under Article 25 (allows freedom of conscience, faith and religion), Article 19 (right to free speech and expression) and the extent to which the state can impose fetters on the two rights.
According to the petitioners, the hijab is an essential religious practice under Islamic law and, thus, is a constitutionally protected right. It was also part of their fundamental right under Article 19 that allows protection of free speech and expression, and can be “restricted” only on reasonable grounds.
But, the ban on hijab cannot be construed as “reasonable,” the petitioners had contended before the court. They argued fundamental rights can be curtailed to achieve three objectives – public order, health and morality. However, the government order does not clarify the objective behind putting the curb on wearing the headscarf, the petitioners said, seeking quashing of the two orders.
They even raised doubts over the validity of the College Development Committee (CDC), which prescribed the uniform, including the hijab ban, and argued the committee lacked jurisdiction under the state law to frame such rules.
On its part, the government of Karnataka denied it had anything to do with framing of uniform guidelines and that this authority vested with the college administration. But it supported the college’s decision to ban hijab as it was not an essential part of religious practice.
The college too defended its order, asserting the uniform system was followed in the schools since 2004 and was never questioned till December last, when a handful of students made it an issue.
The controversy escalated further on the instigation of CFI – student’s wing of PFI, the college alleged in its submission.
Both state and the college rejected the petitioners’ argument that the order violated their fundamental right to live with dignity, maintaining the hijab ban is only restricted to schools and not the entire state.
Article 25 right on a lower pedestal
The court declined to accept the petitioners’ argument that hijab is an essential religious practice and the ban is “unreasonable”.
In doing so, the court first analysed whether a restriction can be imposed on the right to practice faith and restriction under Article 25. It is significant to note, the court said, that the Article began with imposing restrictions on free exercise of religion.
The limitation, it added, can be imposed on the grounds of public order, morality and health. This placed the right on “lower pedestal” qua other Fundamental Rights.
While versions of different authors on the exact source of Islamic religious practices were cited during the course of hearing, the court relied on the translation of, and commentary on, the Quran by Indian jurist Abdullah Yusuf Ali to decide whether the hijab is a compelling religious practice.
Noting that not every activity associated with religion is an essential religious practice, the court held that hijab wearing is not fundamental to Islamic law as it did not form the cornerstone of the religion.
After going through Ali’s commentary, the court concluded hijab is not referred to in Quran. Rather, the court added, Ali’s commentary suggested wearing the hijab is only recommendatory because no penalty or penance is prescribed for not wearing it.
“This apparel at the most is a means to gain access to public places and not a religious end in itself. It was a measure of women enablement and not a figurative constraint,” the court held.
The court also held that “What the Chief Architect of our Constitution observed more than a century ago about the purdah practice equally applies to wearing of hijab. The is a lot of scope for the argument that insistence on wearing of purdah, veil or headgear in any community may hinder the process of emancipation of woman in general and Muslim woman in particular. That militates against our constitutional spirit of ‘equal opportunity’ of ‘public participation’ and ‘positive secularism’.”
Wearing of hijab was recommended as a measure of social security for women and to facilitate their safe access to the public domain. At the most. the practice of wearing this apparel may have something to do with culture, but certainly not with religion, the court opined.
Giving a historical perspective, the court said the era before the introduction of Islam was known as a time of barbarism and ignorance, Therefore, Quran showed concern for the cases of molestation and innocent women, and therefore, recommended wearing hijab and other apparel as a measure of social security.
“May be in the course of time, some elements of religion permeated into this practice as ordinarily happens in any religion,” the court said.
Uniform in schools is for discipline, to maintain harmony
Upholding the PU college’s jurisdiction to prescribe uniforms for its students, the court observed this concept “is not of a nascent origin”.
“It is not that, Moghuls or Britishers brought it here for the first time. It has been there since the ancient gurukul days,” it said.
Rejecting the petitioners’ charge that prescribing school uniforms partakes the character of “police power”, the court held that their argument that uniforms cannot be mandated unless there is a law saying so was dismissed as “far-fetched”.
School regulations prescribing dress code for all the students as one homogenous class serve constitutional secularism, the court held, as it took into account an “overwhelming juridical opinion” in all advanced countries.
Dress code for students within the four walls of the classroom and not the entire school premises — as was in this case — does not offend constitutionally protected category of rights, when they are ‘religion-neutral’ and ‘universally applicable”, the court said.
The court also ruled against the petitioners’ argument that wearing of hijab possesses cognitive elements of expression that are protected under Article 19 (1)(a), which protects the right to free speech and expression.
The petitioners, it added, have approached the court against violation of essentially “derivative rights” and not “substantive rights”. Hence, they are not entitled to avail the protection that, otherwise, are available for substantive rights.
Moreover, schools, the court said, are “qualified public spaces”, where assertion of an individual right can be detrimental to the general discipline and decorum of the space.
“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,” said the bench.
(This story has been updated with excerpts from the judgment.)