BENGALURU: The Karnataka high court ruled on Tuesday that wearing the hijab is not an essential religious practice of Islam and upheld a state government order on uniform in educational institutions, dismissing a batch of petitions saying not being allowed to wear headscarves in class violates fundamental rights.
At a time when the hijab-removal rule has become a flashpoint of religious tension in the state and has spread in other parts of the country, the judgment endorsed the spirit of “uniformity” that school and college dress codes/uniforms promote.
A three-judge full bench of Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi rejected the plea that the ban violates rights guaranteed by the Constitution under Articles 14 (equality), 15 (no discrimination over faith), 19 (freedom of speech & expression), 21 (protection of life & personal liberty) and 25 (freedom of religion). It dismissed petitions filed by students from Udupi, Kundapur and Bengaluru and also a couple of PILs that had set off a nationwide debate.
The row began in December when the Government PU College for Girls in Udupi barred students wearing hijab from class, triggering protests. On February 5, the state government issued a circular asking students to wear the uniform prescribed by the state or school/college development commitee.
“Whichever be the religion, whatever is stated in the scriptures, does not become per se mandatory in a wholesale way. That is how the concept of essential religious practice is coined,” the HC verdict said. “If everything were to be essential to the religion logically, this very concept would not have taken birth. It is on this premise the Supreme Court in Shayara Bano case, proscribed the 1400-year-old pernicious practice of triple talaq in Islam. What is made recommendatory by the Holy Quran can’t be metamorphosed into mandatory dicta by a hadith which is treated as supplementary to the scripture. A contra argument offends the very logic of Islamic jurisprudence and normative hierarchy of sources.”
The court held in its 129-page judgment that the prescription of school uniform is a reasonable restriction constitutionally permissible to which the students cannot object.
The verdict matches up to the HC’s interim order on February 10 — the first day of hearing in the case — in which it forbade students from wearing saffron shawls (bhagwa), scarf, hijab, religious flags or the like in classrooms of schools and colleges that have prescribed a dress code/uniform.
Meagre material
The HC said the material before the court was extremely meagre and it’s surprising that in a matter of such significance, the petitioners’ averments were as vague as they could be. The bench said no affidavit sworn to by any maulana explaining the implications of the “suras” (sections or chapters of the Quran) quoted by the petitioners was placed before the court, and it wasn’t specifically mentioned for how long the petitioners were wearing the hijab.
“It can hardly be argued that hijab being a matter of attire, can be justifiably treated as fundamental to Islam. 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. The 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 bench said.
On the petitioners’ argument that the ban hurt their conscience, the court said: “Whether conscience the petitioners had 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.”
Government order upheld
The bench upheld the state government’s circular issued on February 5 regarding a uniform dress code in educational institutions. “We hasten to add that certain terms used in a government order such as ‘public order’, etc., cannot be construed as the ones employed in the Constitution or statutes,” it said.
“Nowadays, courts do often come across several government orders and circulars which have lavish terminologies, at times lending weight to the challenge…(that) The impugned order could have been well drafted is true. ‘There is scope for improvement even in heaven’, said Oscar Wilde,” the bench noted.
Plea against school staff, CDC rejected
The bench rejected pleas in the petition filed by the Udupi college students for disciplinary action against the principal, lecturers and staff of their institution and also for removal of the college development committee chairman and vice-chairman.