Hijab Controversy: What has Karnataka High Court said?
Hijab Controversy: In a major blow to students who moved to Karnataka HC against the hijab ban, the court has upheld the ban and pronounced that wearing of hijab is not an essential religious practice and cannot be protected under Article 25 of the Constitution. Five petitions were filed to challenge the ban in court.
The Live Law quoted that the Karnataka HC has framed the following questions:
1- Whether wearing of hijab is an essential religious practice in Islam protected under Article 25 of the Indian Constitution.
2- Whether prescription of school uniform violates the rights.
3- Whether the government order issued on February 5 violates Articles 14 and 15, apart from being incompetent and manifestly arbitrary.
4- Whether any case is made out for issuance of disciplinary inquiry against college authorities.
Chief Justice Ritu Raj Awasthi said, "Our answers to the questions are, wearing of Hijab by Muslim women does not form Essential Religious Practice in the Islamic faith. Our second answer is prescription of school uniforms is only a reasonable restriction, constitutionally permissible which students cannot object to. In view of the above, the government has the power to issue the GO of February 5 and no case is made out for its invalidation. No case is made out for the issuance of disciplinary proceedings against respondents and writ of quo warranto is not maintainable. All writ petitions being devoid of merits are dismissed."
Ahead of the verdict, the Karnataka government banned large gatherings for a week in the capital city to maintain public peace and order. Earlier, the Karnataka High Court has imposed a ban on all religious clothing and symbols such as hijab, turban, bindi, bangles, and cross.
Hijab Issue Explained: Whar is the hijab issue in Karnataka?
Karnataka HC has pronounced its verdict on the weeks-long hijab controversy. Against this backdrop, let us briefly look at the hijab row.
State-run colleges in Karnataka barred entry to Muslim girls wearing hijab, thereby sparking protests which snowballed into counter-protests against the hijab by students who wore saffron scarves. Soon, schools and colleges were shut down for several days and Section 144 was imposed in the state capital around educational institutions.
Five petitions were filed by the students in the Karnataka High Court against the ban arguing that it is against their constitutional rights. Karnataka HC judge who heard the matter referred it to a larger bench comprising Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice J M Khazi.
The three-judge bench then passed an interim order and placed a temporary ban on wearing religious clothes and symbols until it pronounces a verdict on the matter. While the hearing was underway, several women skipped classes and examinations. The issue even gained international attention with the world requesting Indian leaders to stop the marginalisation of Muslim women.
Karnataka HC in its verdict today upheld the ban stating that hijab is not an essential religious practice and cannot be protected under Article 25 of the Indian Constitution.
Karnataka HC Hearings
Arguing on behalf of petitioners, advocate Ravi Varma Kumar said, "I am only showing the vast diversity of religious symbols in all sections of the society. Why is the government picking on hijab alone and making this hostile discrimination? Bangles are worn? Are they not religious symbols? Why are you picking on these poor Muslim girls?"
He further added that the petitioner was sent out of the classroom because of her religion while a bindi, bangles and cross wearing girls were not touched. He went on to ask the court why only the hijab-clad girls were picked. " Mr Kumar said.
"Ghoongats are permitted. Bangles are permitted. Why only this (Hijabs)? Why not the turban of a Sikh, the cross of the Christians? This is a violation of Article 15 of the constitution" he said.
The court earlier passed an interim order allowing the opening of colleges but insisted that the students avoid wearing religious clothes until the court pronounce a verdict on the matter.
Here's what the three-judge bench of Karnataka HC comprising Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice J M Khazi said on the petition filed by the students.
Case transferred to a larger bench.
On February 9, the Karnataka High Court referred the issue to a larger bench and the full bench began hearing the matter on February 10 The court further requested the media to abstain from reporting any observation until a final judgement is passed.
Advocate Sanjay Hegde is representing the Udupi students while Devadatt Kamat is representing the Kundapura students.
What do petitioners argue?
While the students of state-run PU college are regularly wearing their head scarf over the uniform, the school administration insisted they remove it.
The petitioners have been facing discrimination in their classes since December 2021 and were barred from entering the classrooms. They stated that the head scarf is a part of their religious and cultural practice.
Investigation underway on the head scarf.
Chief Justice said, "We are considering the issue whether the wearing of head scarf comes within fundamental right under Article 25. One more question which may require consideration is whether the wearing of a head scarf is part of essential religious practice."
No provision of uniform in the Karnataka Education Act.
Advocate Hegde puts out the fact that the Karnataka Education Act doesn't prescribe uniform and thus there's no question of any penalty for want of uniform or for an infraction of a uniform.
It is to be noted that there's no provision for uniforms in the Karnataka Education Act. However, the state government has passed an order that all educational institutions shall decide their uniforms.
He went on to say that Dr. Ambedkar was made to sit apart in school and after so many years, he do not want any kind of segregation as India is a diverse nation.
Ours is a diverse nation.
"Our tradition teaches tolerance, our philosophy teaches tolerance, our Constitution practices tolerance. Let us not dilute that," the last paragraph of Bijeo Emmanuel judgement that Hegde read.
The case involves constitutional issues.
"We prima facie feel that that stage is over as the issues have been referred to us in the larger bench by the single bench. The single judge has said the matter involves important constitutional issues," the Karnataka HC said.
What other courts held on the hijab?
Hegde then referred to the NALSA judgement which observed that clothing can also form part of one's expression and identity. He also referred to SC judgement in the Puttaswamy case regarding the Right to Privacy and quoted Kerala HC judgement which held hijab as an essential religious practice.
He further quoted another Kerala HC judgement which refused to allow headscarves in a school as it was a private minority institution. However, in this case, the educational institution is run by the state.
Article 25 of the Indian Constitution.
Article 25 of the Indian Constitution confers two rights-- Freedom to Conscience and Freedom to Propagate and Practise Religion. However, the SC held that only important religious practises are protected under Article 25.
The petitioners, in this case, assert their right to wear hijab on grounds of freedom of conscience and right to practise religion.
Exemption given to Sikhs.
Hegde also points out the exemption from wearing a helmet provided to the Sikhs who wear turbans in the Motor Vehicles Act and quotes that there are similar provisions for Pardanashin women.
Hegde's concluding argument:
He concluded his argument by stating that there should be interim orders which will protect the rights of the petitioners to attend the 3 months of college.
Advocate Kamat began.
Advocate Kamat begins with his side soughting an interim relief. He quoted three judgements from the government order issued on February 5 alleging that they were totally against the state-- two Kerala HC judgements discussed earlier, and a Madras HC judgement. The Madras HC judgement was in a case where the uniform was imposed on teachers.
Head scarf is an essential Islamic practice.
He went on to say that it is a farz to cover the head in Islam and quoted the Quranic verse (24.31). Kamat further placed a Madras HC decision before the court that concluded that a head scarf is an essential Islamic practice.
What other courts held on the hijab?
Madras HC decision in Ajmal Khan case: It is, thus, seen from the reported material that there is almost unanimity amongst Muslim scholars that purdah is not essential but covering of head scarf is obligatory.
He then quotes Bijoe Emmanuel case, "The question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion."
Karnataka High Court passed an interim order.
The Chief Justice said, "We will direct that the institutions shall start. But till the matter is pending consideration before the Court, these students and all the stakeholders, shall not insist on wearing religious garments, maybe a head dress or saffron shawl. We will restrain everyone. Because we want peace and tranquillity in the state. We are seized with the matter. We can continue the matter on a day to day basis."
To this, advocate Kamat emphasised that it would amount to a suspension of Article 25 of the Indian Constitution.
The court then asked to have faith in it and said, "Till the disposal of the matter, you people should not insist on wearing on all these religious things."
Advocate Kamat objected and said, "This will amount to suspension of our rights. That will be a total affront to their rights. Because your lordships have not determined. We are told to choose between food and water and both are essential."
The court said that it is a matter of a few days and people must cooperate. Hedge too objected saying that for a few days, people cannot be asked to suspend their faith.
The court maintained its earlier stance and restrained everyone from adopting religious practices until the matter is in court.
Amid the tense situation in the state, the Basavraj Bommai government on 8 February 2022 announced the closure of schools and colleges for the next three days. The protest that began in one state-run college in Udupi snowballed into a nationwide protest.
Also Read | History of hijab in Islam: Why Muslim women wear hijab?