Those not wearing hijab do not become sinners under Islam: Why Karnataka High Court upheld Hijab ban

The Karnataka High Court on Tuesday has upheld the State government order (GO) of February 5 effectively empowering colleges to ban the wearing of hijab (headscarves) by Muslim girl students in educational institutions in the State [Smt Resham v State of Karnataka and Ors]..A three-judge Bench of Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and JM Khazi held that the hijab is not an 'essential religious practice' of Islam, and it was also not covered under the freedom of conscience. The Court also held that prescription of a school uniform is not violative of the rights of freedom of expression and of privacy, and is a reasonable restriction which is constitutionally permissible. Further, it was held that the government has the power to issue the impugned Government Order (GO), and that the GO is valid. .The Court noted that all was well with the dress code since 2004, and that there is scope for the argument that some 'unseen hands' have engineered social unrest and disharmony, and that the issue of hijab is generated and blown out of proportion."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). We are dismayed as to how all of a sudden that too in the middle of the academic term the issue of hijab is generated and blown out of proportion by the powers that be. The way, hijab imbroglio unfolded gives scope for the argument that some ‘unseen hands’ are at work to engineer social unrest and disharmony." The Court said that it won't comment on the issue further since investigation is in progress."We are not commenting on the ongoing police investigation lest it should be affected. We have perused and returned copies of the police papers that were furnished to us in a sealed cover. We expect a speedy & effective investigation into the matter and culprits being brought to book, brooking no delay," said the Court. .It also made an observation that insistence on wearing a purdah, veil or headgear in any community may hinder the process of emancipation of women and Muslim women in particular. Thus, prescription of a school uniform which excludes religious apparel is a step forward, the Court said."What the chief architect of our Constitution observed more than half a century ago about the purdah practice equally applies to wearing of hijab there 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’. Prescription of school dress code to the exclusion of hijab, bhagwa, or any other apparel symbolic of religion can be a step forward in the direction of emancipation and more particularly, to the access to education. It hardly needs to be stated that this does not rob off the autonomy of women or their right to education inasmuch as they can wear any apparel of their choice outside the classroom.".Unseen hands are at work to engineer social unrest and disharmony.Karnataka High Court.The following questions were framed by the Court:1. Whether wearing hijab/head-scarf is a part of ‘essential religious practice’ in Islamic Faith protected under Article 25 of the Constitution?2. Whether prescription of school uniform is not legally permissible, as being violative of petitioners Fundamental Rights inter alia guaranteed under Articles, 19(1)(a), (i.e., freedom of expression) and 21, (i.e., privacy) of the Constitution?3. Whether the Government Order dated 05.02.2022 apart from being incompetent is issued without application of mind and further is manifestly arbitrary and therefore, violates Articles 14 & 15 of the Constitution?4. Whether any case is made out for issuance of a direction for initiating disciplinary enquiry against respondent nos.6 to 14 and for issuance of a Writ of Quo Warranto against respondent Nos.15 & 16?.1. Whether wearing hijab/head-scarf is a part of ‘essential religious practice’ in Islamic Faith protected under Article 25 of the Constitution?The Court said that the Holy Quran has not made it mandatory to wear a hijab or headgear for Muslim women, and since it is not a religious obligation it cannot be considered 'essential' for the religion: "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 absence of prescription of penalty or penance for not wearing hijab, the linguistic structure of verses supports this view. 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 judgment said.The Court said that wearing hijab might have to do with the conditions prevalent in the geographical region but it is not associated with religion. "Regard being had to the kind of life conditions then obtaining in the region concerned, wearing hijab was recommended as a measure of social security for women and to facilitate their safe access to public domain. At the most the practice of wearing this apparel may have something to do with culture but certainly not with religion....What is not religiously made obligatory therefore cannot be made a quintessential aspect of the religion through public agitations or by the passionate arguments in courts," the judgment said. .If the hijab is not worn, it cannot be said that those not wearing it have become sinners or that Islam ceases to be a religion, the Court underscored."It can hardly be argued that hijab being a matter of attire, can be justifiably treated as fundamental to 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. 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’," the verdict reaffirmed. .Those not wearing hijab do not become the sinners under Islam.Karnataka High Court.The Court did not accept the contention of the petitioners that wearing of the hijab is a matter of freedom of conscience. There was no evidence that the petitioners chose to wear a headscarf to convey their beliefs or as a symbolic expression."Conscience is by its very nature subjective. Whether the petitioners had the conscience of the kind and how they developed it are 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.No material is placed before us for evaluation and determination of pleaded conscience of the petitioners. They have not averred anything as to how they associate wearing hijab with their conscience, as an overt act. There is no evidence that the petitioners chose to wear their headscarf as a means of conveying any thought or belief on their part or as a means of symbolic expression. Pleadings at least for urging the ground of conscience are perfunctory, to say the least," the judgment said. .No evidence that the petitioners chose to wear their headscarf as a means of conveying any thought or belief.Karnataka High Court.2. Whether prescription of school uniform is not legally permissible, as being violative of petitioners Fundamental Rights inter alia guaranteed under Articles, 19(1)(a), [freedom of expression] and 21, (privacy) of the Constitution?The Court held that prescription of a school uniform is a reasonable restriction which is constitutionally permissible, and that schools can have uniforms."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 uniform. In civilized societies, preachers of the education are treated next to the parents. Pupil are under the supervisory control of the teachers. The parents whilst admitting their wards to the schools, in some measure share their authority with the teachers. Thus, the authority which the teachers exercise over the students is a shared ‘parental power’," the Court held..Idea of schooling is incomplete without teachers, taught and the dress code.Karnataka High Court.The Court also noted that the Constitution places a fundamental duty to instill a scientific temperament, and that it would be impossible to do so if wearing of hijab or bhagwa is regarded as sacrosanct. "School uniforms promote harmony and spirit of common brotherhood transcending religious or sectional diversities. This apart, it is impossible to instill the scientific temperament which our Constitution prescribes as a fundamental duty vide Article 51A(h) into the young minds so long as any propositions such as wearing of hijab or bhagwa are regarded as religiously sacrosanct and therefore, not open to question. They inculcate secular values amongst the students in their impressionable & formative years.".The Court did not accept the argument of the petitioners that the goal of education is to promote plurality, and not uniformity or homogeneity, Such an argument is "misconceived", the Court said. "Ordinarily, liberties of a person stand curtailed inter alia by his position, placement and the like. The extent of autonomy is enormous at home, since ordinarily residence of a person is treated as his inviolable castle. However, in ‘qualified public places’ like schools, courts, war rooms, defence camps, etc., the freedom of individuals as of necessity, is curtailed consistent with their discipline & decorum and function & purpose," the judgment stated. .Schools are 'qualified public places and thus individual rights may be repelled in favour of general discipline and decorum, said the Court. Moreover, the dress code is equally applicable to all students, regardless of religion, language or gender."It hardly needs to be stated that schools are ‘qualified public places’ that are structured predominantly for imparting educational instructions to the students. Such ‘qualified spaces’ by their very nature repel the assertion of individual rights to the detriment of their general discipline & decorum. Even the substantive rights themselves metamorphise into a kind of derivative rights in such places. These illustrate this: the rights of an undertrial detenue qualitatively and quantitatively are inferior to those of a free citizen.Similarly, the rights of a serving convict are inferior to those of an undertrial detenue. By no stretch of 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 complaint of manifest arbitrariness or discrimination inter alia under Articles 14 and 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.".The Court accepted the petitioners preposition that what one desires to wear is facet of autonomy and that attire is a part of freedom of expression, however, they noted that it is subject to reasonable regulation. .The petitioners' argument that hijab should be accepted as "reasonable accommodation" was not accepted by the Court, as it would create two categories of girl students."Reasons are not far to seek: firstly, such a proposal if accepted, the school uniform ceases to be uniform. There shall be two categories of girl students viz., those who wear the uniform with hijab and those who do it without. That would establish a sense of ‘social-separateness’, which is not desirable. It also offends the feel of uniformity which the dress-code is designed to bring about amongst all the students regardless of their religion & faiths.Further, the objectives of prescribing a uniform would be defeated, the Bench opined. "The object of prescribing uniform will be defeated if there is non-uniformity in the matter of uniforms. Youth is an impressionable period when identity and opinion begin to crystallize. Young students are able to readily grasp from their immediate environment, differentiating lines of race, region, religion, language, caste, place of birth, etc. The aim of the regulation is to create a ‘safe space’ where such divisive lines should have no place and the ideals of egalitarianism should be readily apparent to all students alike," it was stated. .Object of prescribing uniform will be defeated if there is non-uniformity in the matter of uniforms.Karnataka High Court.The Court also did not accept the petitioners reliance on the South African court decision in MEC for Education: Kwazulu-Natal v. Navaneethum Pillay, as foreign case cannot be the sole model, and because a nose stud is "ocularly insignificant" as it is small."In a given fact matrix, how a foreign jurisdiction treats the case cannot be the sole model readily availing for adoption in our system which ordinarily treats foreign law & foreign judgments as matters of facts. Secondly, the said case involved a nose stud, which is ocularly insignificantly, apparently being as small as can be. By no stretch of imagination, that would not in any way affect the uniformity which the dress code intends to bring in the class room," the judgment ruled. . 3. Whether the Government Order dated February 5, 2022 apart from being incompetent is issued without application of mind and further is manifestly arbitrary and therefore, violates Articles 14 and 15 of the Constitution?The Court said that there was no need to undertake a deeper discussion of the College Development Committee and its constitution and functioning, and that nobody had argued that the Government circular was void ab initio. "It is nobody’s case that the Government Circular is void ab initio and consequently, the School Betterment (Development) Committees are non est. They have been functioning since last eight years and no complaint is raised about their performance, nor is any material placed on record that warrants consideration of the question of their validity despite," the Court noted..On the presence of Member of Legislative Assembly in college development committees, the Court said there was no law or ruling preventing them from being members. "However, there may be some scope for the view that it is not desirable to have elected representatives of the people in the school committees of the kind, one of the obvious reasons being the possible infusion of ‘party-politics’ into the campus. This is not to cast aspersion on anyone. We are not unaware of the advantages of the schools associating with the elected representatives. They may fetch funds and such other things helping development of institutions. This apart, no law or ruling is brought to our notice that interdicts their induction as the constituent members of such committees," the Bench said. .The arguments relating to 'public order' which were referred to by the petitioners with reference to the impugned Government Order were not accepted by the Court as a reason to invalidate the GO. The uniform can exclude any other apparel which has religious overtones, said the Court"Again we do not have any quarrel with the proposition of law. However, we are not convinced that the same is invocable for invalidating the Government Order, which per se does not prescribe any uniform but only provides for prescription in a structured way, which we have already upheld in the light of our specific finding that wearing hijab is not an essential religious practice and school uniform to its exclusion can be prescribed. It hardly needs to be stated that the uniform can exclude any other apparel like bhagwa or blue shawl that may have the visible religious overtones.".Further, the words used in Government Orders have to be construed in the generality of their text, with common sense and with a measure of grace to their linguistic pitfalls. The text and context of the Act under which such orders are issued also figure in the mind, the Court said. .The contention of the petitioners that the GO had been hastily issued even when the High Powered Committee was yet to look into the issue as to the prescription of dress code in educational institutions was also not accepted by the Court. "At times, regard being had to special conditions like social unrest and public agitations, governments do take certain urgent decisions which may appear to be knee-jerk reactions. However, these are matters of perceptions," said the Court. Courts should not run a race of opinions with the executive, especially when police content and considerations that shaped the decision are not judicially assessable. The doctrine of 'separation of powers' is a basic feature of the Constitution, and the organs of the State must show due deference to each others opinions, the Court noted. .4. Whether any case is made out for issuance of a direction for initiating disciplinary enquiry against respondent Nos.6 to 14 and for issuance of a Writ of Quo Warranto against respondent Nos.15 & 16?The Court held that no case was made out for initiating a disciplinary enquiry against the respondents, and the prayer was rejected as it was not maintainable. For this writ, it should be demonstrated that the person holds a public post or public office, and the placements of the respondents concerned in the College Betterment (Development) Committee does not fill the public character required as a condition for the issuance of writ of quo warranto, the Court said while rejecting the prayer. .The Court also referred to International Conventions and emancipation of women, saying that there have been legislative and judicial processes to emancipate women from discrimination. Regardless of religion, women are equal, if not superior to men, said the Court - "Be it business, industry, profession, public & private employments, sports, arts and such other walks of life, women are breaking the glass ceiling and faring better than their counterparts.".The Court thus dismissed all the petitions as being devoid of merits. .[Read Judgment]

Those not wearing hijab do not become sinners under Islam: Why Karnataka High Court upheld Hijab ban

Arya Raje

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