‘Hijab not an essential part of Islam,’ rules Karnataka high court
The three-judge bench of the high court ruled that the prescription of a school uniform is only a reasonable restriction
BENGALURU: In a landmark verdict, the Karnataka high court on Tuesday ruled that hijab is not an essential part of Islam, in a way underlining the state government’s restriction on the use of the head scarf by Muslim girls and women in educational institutions.
The three-judge bench of chief justice Ritu Raj Awasthi, justice Krishna S Dixit and justice JM Khazi said that taking a holistic view of the entire matter, the bench has formulated a few questions and answered accordingly.
The questions raised were whether wearing hijab is an essential religious practice under the Islamic faith protected under Article 25 of the Indian Constitution; whether the prescription of school uniform is a violation of the student’s rights under articles 19 (A) (freedom of expression) and 21 (right to privacy); and the government order dated February 5, “issued without application of mind with manifestly arbitrary”.
Reading out the verdict, chief justice Awasthi said, “We are of the considered opinion that wearing of a hijab by Muslim women does not form part of the essential religious practice in the Islamic faith. The answer to the second question is that we are of the considered opinion that prescription of a school uniform is only a reasonable restriction, constitutionally permissible, which the students cannot object to. The answer to the third question is that the government has the power to issue an order and no case is made of its invalidation.”
Anas Tanwir, a Supreme Court lawyer, tweeted that students in the contentious Udupi college will contest the order in the Supreme Court. “Met my clients in Hijab matter in Udupi. Moving to SC soon In sha Allah. These girls will In sha Allah continue their education while exercising their rights to wear Hijab. These girls have not lost hope in Courts and Constitution,” read his tweet.
Karnataka education minister BC Nagesh hailed the verdict and tweeted, “I welcome the landmark judgement of Hon’ble Karnataka High Court on School/College uniform Rules. It reiterated that the law of the land is above everything.”
The bench, constituted on February 9, heard a batch of petitions on a day-to-day basis over the last two weeks filed by some girls seeking permission to wear hijab in educational institutions. The girls were denied entry into a pre-university government college for girls in Udupi on December 28 for wearing the headscarf, which triggered the debate.
What began with two colleges in the coastal districts of Udupi and Mangaluru snowballed into a statewide row last month after more institutions announced a ban on hijab. Hindu groups mobilised groups of men wearing saffron shawls to oppose the entry of women in hijab in schools and colleges, while isolated clashes broke out in Shivamogga, forcing the state government to issue a controversial order on February 5 that said students will not be allowed to attend classes wearing hijab.
On February 10, the high court issued an interim order that said students should not wear any religious attire to classes till the end of the hearing. On February 23, it clarified the order and said it is applicable to all degree and PU colleges having a dress code.
The exchange capped judicial proceedings that have held the interest of the nation over the past few weeks. The arguments in the case, crucial to what has turned into a larger debate around the display of religious identity in educational institutes and the treatment of minorities in the state, were largely centred on Article 25 of the Indian Constitution.
During the course of the hearing, the female students argued that wearing hijab is an essential religious practice under Islam and the suspension of the same, even for a few hours during school, undermines the community’s faith and violates their fundamental rights under Articles 19 and 25 of the Constitution.
Appearing for the petitioners, lawyer Devdatt Kamat cited several judgements from other countries, including South Africa and Canada, to make his point and also cited the case of Sonali Pillai, who challenged her school’s order in court when she was restricted from wearing a nose ring. Kamat said Pillai won the case in South Africa.
Seeking the right to wear the traditional headscarf, Kamat said wearing a hijab is an innocent practice of faith and not a display of religious jingoism.
Senior advocate Ravi Varma Kumar said the discrimination against Muslim girls is purely based on religion as Hindu girls wearing bangles and Christian girls wearing cross were not sent out of educational institutes. The petitioners claimed that hijab is an essential part of Islam and public order will not be disturbed merely because a Muslim girl wears the hijab.
The state government, however, argued that the petitioners were seeking to declare the hijab as an ‘essential religious practice’, which will bind every Muslim woman to follow a particular dress code. Advocate General Prabhuling Navadgi went on to argue that the petitioners did not place any material on record to substantiate their claim for a declaration that wearing a hijab is an essential religious practice.
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