Allowing hijab can lead to ‘social-separatedness’: What the court order banning headscarves said
The judges held that the hijab was not essential to Islam and that prescribing school uniforms did not violate the rights of citizens.
The Karnataka High Court on Tuesday dismissed all petitions filed against the state government’s ban on wearing hijabs in educational institutions.
The ban had been imposed last month after a group of students of the Government Women’s Pre-University College in Udupi city protested because they were not allowed to attend classes for being dressed in the headscarf.
Here are five major observations made by the three-judge bench of Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and JM Khazi:
Hijab not essential to Islam
On Tuesday, the judges said that their verdict was based on the answers they formulated to three central questions that the petitioners and the state government argued on during the hearings.
The petitioners had contended that the hijab is an essential religious practice of Islam. Not allowing the headscarf in educational institutions violated the freedom to practice and profess a religion as guaranteed under Article 25 of the Constitution, they said. Karnataka Advocate General, Prabhuling Navadgi had contested the claim.
The judges have held that wearing the hijab is not an essential practice for Muslim women. Citing a 2018 judgement of the Kerala High Court, the judges noted that protection of fundamental rights to practice a religion must be in concurrence with “constitutional values” that protect dignity and individual freedom.
The order also cited several portions of the Quran and other Islamic text to back the judgement that that hijab was not mandatory for Muslim women.
“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 judges concluded.
The court said that there was no penalty or penance prescribed in the Quran for a woman not wearing the hijab. The linguistic structure of the verses of the religious scripture supported the view that headscarves are not compulsory for women.
The bench said that in the ancient times, wearing of the hijab was recommended as a measure of social security for women. “At the most the practice of wearing this apparel may have something to do with culture but certainly not with religion,” it observed.
Prescribing school uniform does not violate rights of citizens
The court held that prescribing a dress code for the students did not offend “constitutionally protected category of rights, when they are ‘religion-neutral’ and ‘universally applicable’”.
Counsels of the petitioners had argued that the women students be allowed to wear hijabs along with the school uniform. They had contended that not allowing this would violate the students’ freedom of expression guaranteed in the Constitution.
The judges, however, observed that a dress code did not offend students’ fundamental right to expression or their autonomy.
They said that “schools are ‘qualified public places’ for imparting education”.
“Such ‘qualified spaces’ by their very nature repel the assertion of individual rights to the detriment of their general discipline and decorum,” the judges noted.
The petitioners had also asked for “reasonable accommodation”, saying they should be allowed to wear a hijab in a colour to suit the institutional dress code. But the court ordered that no “reasonable accommodation” could be given for the hijab and that allowing it could lead to “social-separatedness” and offend the feel of uniformity.
“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 & faith.”— Karnataka High Court
The court said that school uniforms “promote harmony and spirit of common brotherhood” that transcends religious diversities. “...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 hijabs or bhagwa are regarded as religiously sacrosanct and therefore, not open to question.”
Government order on hijab ban cannot be invalidated
On February 5, the Karnataka government had passed an order banning clothes that “disturb equality, integrity and public order”. The petitioners had argued that the government did not have the authority to impose such an order under the Karnataka Education Act, 1983.
But, the judges held that Section 133(2) of the Act empowers the government to issue any directions to implement provisions of the Act.
The judges further pointed out that the government order “per se does not prescribe any uniform but only provides for prescription [of uniform] in a structured way”.
The court said that since its order had already stated that wearing hijab was not an essential religious practice of Islam, the government’s order on banning clothes that “disturb equality, integrity and public order” cannot be invalidated.
The judges said that the petitioners did not specifically state as to for how long they had been wearing the hijab. They said that there was no material on record to show that the petitioners had been wearing hijabs “from the beginning”.
On college development committees
Another contention of the petitioners against the government order was that it allowed college development committees to prescribe uniforms. Petitioners had argued that the these committees were non-statutory bodies and cannot be given this power.
They also pointed out that the chairman of the development committee of the Udupi college was the local Bharatiya Janata Party MLA.
In the verdict, the judges noted: “Merely because these Committees are headed by the local Member of Legislative Assembly, we cannot hastily jump to the conclusion that their formation is bad.”
The judges said they were “not inclined to undertake a deeper discussion” on the functioning of these committees as none of the petitions had challenged a 2014 government circular thad notified the formation of the panels.
“The school regulations prescribing dress code for all the students as one homogenous class, serve constitutional secularism,” the court observed.
The judges noted that the “ethos of Indian secularism” was not the same as the “idea of separation between Church and State as envisaged under American Constitution”.
The court said that the “positive secularism” espoused by the Indian Constitution “is not antithesis of religious devoutness but comprises in religious tolerance”.
The court also directed governments to formulate curricula that would inculcate the sense of fundamental duty prescribed under Article 51A(e) of the Constitution.
Article 51A(e) says: “It is the fundamental duty of citizens to ‘to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women”.
The court also referred to a passage from a text written by BR Ambedkar, in which he argued that the purdah system was causing the social segregation of Muslim women. “...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 women in general and Muslim women in particular,” the court said.
The bench said that this would go against the constitutional spirit of equal opportunity of public participation and “positive secularism”.
“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,” it added.