Explained: Court Rulings on Hijab

The Karnataka High Court is hearing a series of petitions challenging government order the banning of the hijab in public educational establishments. In an interim order on Thursday, the bench headed by Chief Justice Ritu Raj Awasthi said that no religious clothing should be allowed on campus until the court renders its verdict. What are the main issues before the court and how has the state defended the hijab ban?

What is the government order?

On February 5, the Government of Karnataka passed an ordinance exercising its powers under Section 133(2) of the Karnataka Education Act 1983. The provision grants the state the power to issue guidelines for public educational institutions to follow. In 2013, under this provision, the state issued a directive making uniforms mandatory for educational institutions. Referring to the 2013 directive, the latest directive clarifies that a headscarf is not part of the uniform.

It states that wearing the headscarf is not an essential religious practice for Muslims that can be constitutionally protected. The ordinance takes refuge in three cases decided by different High Courts to judge that the ban on the headscarf does not violate fundamental rights, in particular freedom of religion.

The petitioners, however, argued that the facts and circumstances of the three cases are different and cannot be applied to the Karnataka case. This means the High Court will first have to decide whether wearing the hijab is an essential religious practice.

What are these three cases?

The three cases cited in the government order are from the high courts of Kerala, Bombay and Madras.

High Court of Kerala, 2018: In Fathima Thasneem v State of Kerala, a written petition had been filed by Mohammad Sunir, the father of two underage girls aged 12 and 8. The petitioner challenged the school’s refusal to allow long-sleeved shirts and headscarves to be worn as it was against the prescribed dress code. A single judge bench of the Kerala High Court ruled in favor of the school which was a Christian Missionary School, a minority educational institution. The court said that the “collective rights” of the school should take precedence over the individual rights of the students.

In the ongoing case in the Karnataka High Court, Senior Solicitor Devadatt Kamath argued on Thursday that this case cannot be a valid precedent as it refers to a minority educational institution as opposed to an educational institution. public education. Constitutionally, minority educational institutions enjoy greater freedom to regulate their affairs.

Bombay High Court, 2003: In Fathema Hussain Sayed vs Bharat Education Society, a minor student had challenged the dress code prescribed by the school which did not authorize the wearing of headscarves. Because the underage girl was attending an all-girls school, the Bombay High Court ruled against her, despite the argument that the wearing of the headscarf is an essential religious practice that must be constitutionally protected. The High Court referred to the relevant verses of the Quran and held that the book did not prescribe the wearing of headscarves in front of other women.

“It cannot be said that a female student not wearing the student headscarf or head covering in the girls’ section is acting in any way inconsistent with the aforementioned verse 31 or violating any injunction provided in the Holy Quran “, said the court.

In the Karnataka case, the petitioners argued that even though the state government had cited this Bombay HC case to support the point that the courts refrained from interfering with prescribed dress codes for establishments education, the current case actually supports the cause of the petitioners and not the state. The decision falling within “the context of Muslim girls studying in sections reserved for girls”, the lawyer for the applicants argued that, as a corollary, the wearing of the headscarf should be authorized in a mixed establishment.

Madras High Court, 2004: Sir M Venkata Subba Rao, Matriculation Higher Secondary School Staff Assn v Sir M Venkata Subba Rao, Higher Secondary School Matriculation was a case challenging the dress code imposed by the management of a school on teachers. Although the Madras High Court found that the imposition of the dress code had no legal basis, it refused to intervene on the grounds that teachers “should set high standards of discipline and should be a role model for students. “.

This decision does not address the wearing of the hijab or the rights under Article 25 of the Constitution which guarantees religious freedom.

What are the other grounds on which the Karnataka government order was challenged?

The petitioners argued that wearing the hijab is an expression protected by Section 19(1)(a) of the Constitution which guarantees the right to freedom of speech and expression. Constitutionally, a right under section 19(1)(a) can only be limited to the “reasonable restrictions” mentioned in section 19(2). This includes sovereignty and integrity of India, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offense .

The petitioners argued that a student silently wearing a hijab/headscarf and attending a class can in no way be considered a practice that disturbs “public order” and is only a profession of faith.

The petitioners also argued that banning the headscarf violates the fundamental right to equality since other religious symbols, such as the turban worn by a Sikh, are not explicitly prohibited. Lead attorney Sanjay Hedge, representing the petitioners, also argued that the rules mandated the wearing of a dupatta for women and that the state could not dictate how the dupatta should be worn if a female student wished to opt out. cover the head.

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