By Babita Jha March 14, 2023 Legal Issues

Hijab controversy: Legal Aspects

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The hijab controversy is one of dominating news in recent days. The issue throws up legal questions on reading the freedom of religion and whether the right to wear a hijab is constitutionally protected.

This case is pending before the Karnataka High Court for the final order. Interim order dated February 10, 2022, will continue till further order.

Interim order

February 10, 2022, the Karnataka High Court passed an interim order in the petitions challenging the Hijab ban in colleges in the state of Karnataka. In this interim order, the high court requested the State to re-open the educational institutions at the earliest and has restrained students from wearing any sort of religious clothes. This order applies only to those institutions which have prescribed a uniform dress code.

Case details

This case is registered as “Resham & Anr. V. State of Karnataka & Ors (WP No. 2347/2022, connected cases WP No. 2146/2022, WP No. 2880/2022, WP No. 3038/2022, WP No. 3044/2022).

Petition filed by Muslim girl students challenging the action of a government college in denying them entry for wearing a hijab (headscarf). The petitioners prayed for an interim arrangement, where they can continue to wear a headscarf of the same colour as the uniform go to the college.

A single bench had referred the petitions to a larger bench observing that “questions of seminal importance” are involved.

The three-member bench of Chief Justice Ritu Raj Awasthi, Justice Krishna S. Dixit and Justice J.M. Khanzi is hearing this matter.

Legal questions before the court

1. Whether wearing of hijab is part of the essential religious practice of Islam?

2. Whether state interference in such matters is warranted?

3. Whether wearing of hijab partakes the character of the right to expression under Article 19(1) (a) of the Constitution and whether restriction can be levied only under Article 19(2).

Facts of the hijab controversy case

Petitioners are girl students of Government PU (Pre- University) college, Udupi district, Karnataka.

They claim that they were wearing a headscarf, as part of their religious and cultural practice, over their uniform. However, the respondent-college insisted that they remove their heads scarf. Six students were made to stand out of the class and this discrimination is continuing since December 2021. Petitioners claim that a representation was made to the District Education Officer. On January 1, 2022, the principal called a meeting of the College Development Committee. This committee declared that petitioners should not wear the headscarf. Following this, the petitioners were not allowed to attend classes and were made to sit outside, which led to protests.

This decision led to uproar. Students from other communities started support to college and the government. The row has spilt to other colleges in the state.

After a violent clash between police and students in Bengaluru, the state government has issued the second order imposing a ban on the wearing of clothes that tend to disturb equality, integrity, and public order and imposed section 144 in select districts.

Aggrieved by the alleged illegal and discriminatory action of PU College which has denied them entry into the college on the sole ground of wearing hijab, Petitioners (girl students) approached the court seeking a declaration that wearing a hijab (head scarf) is a fundamental right guaranteed under Article 14 and 25 of the Constitution of India and is an essential practice of Islam.

Contentions on behalf of the petitioner/students

The right to wear hijab is an essential religious practice under Islam, and the State is not empowered to interfere with such rights under Articles 14, 19 and 25 of the Constitution.

Wearing a hijab is an expression protected under Article 19 (1) (a) of the Constitution which guarantees the right to freedom of speech and expression. Constitutionally, a right under Article 19 (1) (a) can only be limited to the “reasonable restrictions” mentioned in Article 19(2). Reasonable restrictions include sovereignty and integrity of India, friendly relations with foreign states, public order, decency or morality or contempt of courts, defamation or incitement to an offence.

In the NALSA V Union of India case, the Supreme Court held clothing can also form part of one’s expression and identity. Their advocate pointed out that the Motor Vehicles Rules exempt Sikhs who wear turbans from the requirement of the helmet while riding bikes. Similarly, in the Supreme Court Rules, there are provisions for pardanashin women.

Article 25 of the Constitution confers two rights, first, the freedom of conscience and, second, the freedom to practice and propagate religion “here petitioners assert the right to wear hijab on the freedom of conscience as well as their right to religion.”

The lead case on freedom of conscience is Om Bijoe Emmanuel v. State of Kerala (popularly known as the National Anthem Case). In this case, the Supreme Court decided on the freedom of conscience without going into religious practice. Court did not frame the question of whether the refusal to sing the national anthem was part of the essential religious practice of Jehova’s Witness, and merely, examined if it was based on a bonafide religious belief.

Wearing Hijab is an essential religious practice, which the state can’t deny. Kerala High Court in the 2016 judgment held that it is a farz to cover the head, after discussing the sources of Islamic law including the Holy Quran and Hadith. The court allowed two Muslim girl students to wear it while appearing for the CBSE All India Pre Medical Test (AIPMT).

Advocate for petitioners cited the judgement of the Madras High Court in M. Ajmal Khan V. Election Commission of India. In this case, the question before the court was whether Muslim women clad in purdahs/burqas could be photographed for electoral roll. It was held therein that the headscarf is an essential part of the religion.

The rules prescribed wearing of a dupatta for women and the state cannot dictate the manner of wearing that dupatta if a student wishes to cover her head with it.

This is not just a case of essential religious practice. This is also a case of essential education for the girl child.

The students were wearing the uniform. They only wanted to wear the head scarf of the same colour.

Students silently wearing a hijab/headscarf and attending class cannot in any manner be said to be a practice that disturbs “public order” and is only a profession of their faith.

There is no provision for uniform in the Karnataka Education Act, 1983. Advocates referred to Rule 11 of the Karnataka Educational Institutions (Classification, Regulation and Prescription of Curricula Etc.) Rule, 1995, which makes provision for uniforms, books etc. are rules intended for schools. The 2006 Rules, which are applicable Pre-University, contains no provision for uniform. “uniforms are a school phenomenon, for students to be identified if they got lost or ran away from school. When students went to college, they stepped out of uniform and uniform in colleges came much later.”

Even if a penalty is prescribed, the absolute expulsion of keeping children away is disproportionate under the Karnataka Education Act, penalties prescribed in the nature of fines.

The government cited the Kerala High Court judgment in Fatima Thasneem V State of Kerala, where the court refused to direct a private school to allow Muslim students to wear head scarves, However, this judgment was in a different context; pertaining to a private school run by Christian management.

Another case cited by Government is the Bombay High Court judgment in Fatheema Hussain Sayed V. Bharat Education Society. This is also not applicable to the instant case as that was in the context of an exclusive girl’s school and the court held that a Muslim girl didn’t need to cover her head while studying in all-girls schools.

The third judgement cited in the GO (Government Order), delivered by the Madras High Court, was in a case where the uniform was imposed for teachers and Article 25 was not in issue in that case, as the issue was power to prescribe uniform for teachers.

Contentions on behalf of the respondents/Government

Section 133 (2) of the Karnataka Education Act, 1983 grants the state to issue directives for government educational institutions to follow. Under this section, the Karnataka government issued a directive in 2013 making uniforms compulsory for education institutions. The government passed an order on 5^th February 2022 referring to the 2013 directive, the latest directive specifies that a headscarf is not part of the uniform.

Government Order (GO) of 5^th February 2022 says:

1. A headscarf is not a part of the uniform.

2. Wearing a headscarf is not an essential religious practice for Muslims. Therefore, not protected by the Constitution.

3. GO cited three judgements from different High Courts to hold that banning the headscarf is not violative to fundamental rights, particularly freedom of religion.

4. The state has claimed that it’s only concerned to maintain uniformity, discipline and public order in educational institutions and not to interfere in any religious right. “the feeling of oneness, fraternity and brotherhood shall be promoted within an institution. In educational institutions, students should not be allowed to wear identifiable religious symbols or dress codes catering to their religious beliefs and faith. Allowing this practice would lead to a student’s acquiring a distinctive, identifiable feature which is not conductive for the development of the child and academic environment.”

While apposing interim relief the advocate for the government argued that the government equally wants to resume classes’ however “we cannot start with one set of students coming with head scarfs and another set coming with saffron shawls. They must go back to status quo ante.”

Supreme Court on Hijab controversy

On February 11, the Supreme Court refused to hear a petition on the ongoing hijab controversy, even as the case is being heard before the Karnataka high court.

Some international instances of hijab controversy

France veil ban case, 2014: similar issue were before the European Court of Human Rights. The court upheld the ban on the veils that cover the full face and head.

Belgium veil band case, 2017: This time again ECHR upheld the ban.

In both the European cases the similar arguments relating to “uniformity” were before the court. However, there are two basic differences:

In both cases, the question was veil (naqab) which cover full face and hair. But in the present Karanataka case in India dress in question is a headscarf (hijab) that covers only the head and hair.

These bans were upheld on the grounds of gender equality concerns. The court said in France case while upholding ban “preservation of the condition of living together” which allows persons to see and identify each other.”

However, neither of these doctrines are valid when it comes to a Hijab.

How common is the hijab in India?

There are three popular forms of head covering among Muslim women- burqa, naqab and hijab. According to Washington DC-based Pew Research Centre survey (held between 2019-2020 and published in June 2021), nearly two-thirds of Muslim women wear a burqa or other form of the face or head cover in India. Wearing Hijab seems to be more common in the southern state. PEW reports that in Karnataka 71% of Muslim women and 42% of Hindu women cover their heads outside the home (pan India ratio is 89% of Muslim women and 59% of Hindu women).

Previous controversy on hijab in Karnataka

According to the BBC, the coastal belt of Karnataka has seen protests over hijab in the past but such issues were often quickly resolved. A second-year PU student at Moodabidri was disallowed from attending classes for an entire year in 2011–12 due to her insistence on wearing a hijab. There have also been instances of Hindu students protesting with saffron scarves to oppose Muslim students being allowed with hijab or burqa in classes. The Muslim women were said to have been anxious that their parents would not allow them to go to college without their religious clothing.

By Babita Jha March 14, 2023 Legal Issues