Karnataka High Court on Tuesday upheld the ban on hijab in educational institutions and dismissed various petitions challenging a ban on head scarfs in educational institutions of the state.
A 3 judge bench of the Karnataka high court presided by Chief Justice Ritu Raj Awasthi ruled that wearing of hijab by Muslim women does not form a part of essential religious practice in the Islamic faith.
It held further that the ban on hijab and prescription of uniform in educational institutions amounted to a reasonable restriction under Article 19 of the constitution.
Whether Hijab is an Essential Religious Practice?
The court held that the wearing of hijab by Muslim women is not an essential religious practice in the Islamic faith.
“There is sufficient intrinsic material within the scripture itself to support the view that wearing hijab has been only recommendatory if at all it is.”, it ruled.
It held further that “the Holy Quran does not mandate wearing of hijab or headgear for Muslim women. Whatever is stated in the above sūras, we say, is only directory, because of the absence of a prescription of penalty or penance for not wearing a hijab, the linguistic structure of verses supports this view”.
The court justified its rulings by arguing that “it can hardly be argued that hijab being a matter of attire, can be justifiably treated as fundamental to the Islamic faith. It is not that if the alleged practice of wearing hijab is not adhered to, those not wearing hijab become the sinners, Islam loses its glory and it ceases to be a religion”.
It held further that “petitioners have miserably failed to meet the threshold requirement of pleadings and proof as to wearing hijab is an inviolable religious practice in Islam and much less a part of essential religious practice”.
Hijab and Freedom of Conscience
As to wearing hijab being a matter of freedom of conscience, regardless of right to religion, the court held that conscience is by its very nature subjective.
“Whether the petitioners had the conscience of the kind and how they developed it is not averred in the petition with material particulars. Merely stating that wearing hijab is an overt act of conscience and therefore, asking them to remove hijab would offend conscience, would not be sufficient for treating it as a ground for granting relief”, the court ruled.
Power to Prescribe Dress Code in Schools
As to the question of whether the school has the power to prescribe a dress code in educational institutions the court replied in affirmative and held that the prescription of school uniform is only a reasonable restriction constitutionally permissible which the students cannot object to.
“The idea of schooling is incomplete without teachers, taught, and the dress code. Collectively they make a singularity. No reasonable mind can imagine a school without a uniform”, the court held.
The court held that there has been an overwhelming juridical opinion in all advanced countries that in accord with the general principle, the school authorities may make reasonable regulations governing the conduct of pupils under their control and that they may prescribe the kind of dress to be worn by students or make reasonable regulations as to their personal appearance, as well.
“The school regulations prescribing dress code for all the students as one homogenous class, serve constitutional secularism”, it ruled further.
Hijab and Freedom of Expression
The court held that ban on hijab in schools is not violative of freedom of speech and expression guaranteed by article 19 of the constitution.
It said that by no stretch of the imagination, it can be gainfully argued that prescription of dress code offends students’ fundamental right to expression or their autonomy.
“In matters like this, there is absolutely no scope for a complaint of manifest arbitrariness or discrimination inter alia under Articles 14 & 15, when the dress code is equally applicable to all the students, regardless of religion, language, gender, or the like. It is nobody’s case that the dress code is sectarian”, it held further.
