4 questions that settled hijab debate in Karnataka High Court

The debate over the religious right to wear a hijab (headscarf) in school and colleges while attending classes is now headed to the Supreme Court. The Karnataka High Court has settled the debate in favour of the state government and educational institutions that prohibited hijab in classrooms. There were four fundamental questions that the Karnataka High Court examined while deciding the hijab row case on Tuesday.

IS HIJAB ESSENTIAL IN ISLAM?

The foremost question before the Karnataka High Court was whether wearing a hijab is an essential part of religious practice in Islam? And, whether as practice under Islamic faith wearing a hijab is protected under Article 25 of the Constitution?

Article 25 guarantees a person the freedom of conscience and the right to freely profess, practice, and propagate her religion. But this fundamental right is subject to public order, morality and health. This is not an absolute right.

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The Karnataka High Court bench of Chief Justice Ritu Raj Awasthi, and Justices JM Khazi and Krishna Dixit ruled that wearing a hijab was not an essential part of Islam.

The bench said, “We are of the considered opinion that the wearing of the hijab by Muslim women does not form a part of the essential religious practice in Islamic faith.”

“Wearing of hijab by Muslim women does not form a part of essential religious practice in the Islamic faith.”

UNIFORM VS FUNDAMENTAL RIGHT

The second crucial question before the high court was whether prescribing a uniform by school administration is legal or does it violate the fundamental rights of the petitioners as guaranteed under Articles 19 and 21?

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The school uniform notification has to stand the test of the fundamental rights freedom of expression, and privacy under the right to life.

The Karnataka High Court ruled, “We are of the considered opinion that the prescription of the school uniform is only a reasonable restriction constitutionally permissible, which the students cannot object to.”

“Mughals or the British did not bring uniform but it was there since the ancient gurukul days. Several Indian scriptures mention Samavastra or Shubhravesh in Sanskrit, the English near equivalent for uniform,” the court said.

“The school uniform ceases to be uniform if hijab of the same colour is allowed. There shall be two categories of girl students those with hijab and those without it,” the bench said.

IS UNIFORM DISCRIMINATORY?

The third key question to examine was whether the government order of February 5 that led to ban on wearing hijab on the campus was incompetent, arbitrary and issued ‘without application of mind’? If that is so, it would amount to violation of the fundamental rights of equality before law (Article 14) and protection against discrimination on the ground of religion (Article 15)

The Karnataka government order empowers educational institutions to prescribe uniforms.

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The Karnataka High Court ruled, “We are of the considered opinion that the government has power to issue the impugned government order dated 5-2-2022 and no case is made out for its invalidation.”

“The government has power to issue the order banning clothes that could disturb peace, harmony and public order and no case is made out for its invalidation.”

Simply put, the high court upheld the government order and its competence for issuing such an order.

TEACHERS HARASSED STUDENTS?

The final benchmark question before the high court bench was to examine whether the principal, teachers and the panel members responsible for banning hijab in classrooms committed a wrong against the students by implementing the school uniform rule?

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In the line of fire were the principal and teachers of the Government Pre-University College of Karnataka’s Udupi, where the hijab row began in December 2021. The school authorities denied permission to girl-students from entering classrooms if they wore hijab.

The Karnataka High Court ruled against any disciplinary action against the principal and the teachers. The high court said the prescription of school uniform would make campuses secular.

“No case made out for initiating disciplinary enquiry against the college, its principal and a teacher for restricting the girls from attending classes putting on hijab,” the court said.

It said, “The school regulations prescribing dress code for all the students as one homogenous class serve constitutional secularism.”

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Going in details, the bench said, “Prescription of school dress code to the exclusion of the 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.”

“The idea of schooling is incomplete without teachers, education and a uniform,” the court said.

THE HIJAB ROW

The hijab controversy took grounds in Karnataka after the Udupi college issued guidelines for the academic year in July 2021 prescribing a uniform dress code.

In September six students (who later became the lead petitioners in the Karnataka High Court) complained of discrimination by teachers against them on religious grounds.

By December, their complaint had taken the form of protest that drew intervention by the district administration. By January, the protest had spread to other colleges and districts. In February, the Karnataka High Court began hearing a bunch of petitions in the matter.