What is a Hijab?
Hijab has been one of the most trending topics in the past few months on social media and as well as the main stream media. Hijab is an Arabic word which means ‘Barrier’. Maximum People associate the word with the headscarf worn by Muslim women. However, contrary to popular belief and according to many, Hijab is not merely a physical object but rather it is concept of internal and external modesty.
Here are few facts pertaining to Hijab:
It’s a religious obligation imposed by the Islamic society and not an essential religious practice.
To the larger percentage of Muslim women who wear Hijab it's not their choice as shown, rather it's a religious obligation with respect to them. Most of the them were taught and brainwashed at during their childhood to wear a hijab. Naturally it's not their choice by default as it's often portrayed. Also, even in 2022 there are multiple Muslim families who don't allow their daughters to go to schools/colleges without their hijab. For example, "Hijab is more important than school to us", said Sadiq Pasha in an incident when he took his daughter back home from Gousia school in Mandya. Repeated attempts by school staff to convince him failed as he walked out saying that he has a problem in sending his child without hijab to class. So, clearly it’s not the choice of the students.
Is Hijab Fundamental Right?
In India we have Fundamental Rights in place which allow us to practice any religion without hurting each others’ feelings and this is stated in Article 25 which says, "all persons are equally entitled to freedom of conscience and the right to freely profess, practice, and propagate religion subject to public order, morality and health." However, Article 28(1) of the Constitution of India says, “No religious instruction shall be provided in any educational institution wholly maintained out of State funds.” The basic reason behind of uniform code is to bring uniformity. According to petitioners Hijab is their fundamental right as it is stated in Quran, but according to the same Quran even a photograph is not allowed to be taken or used which they don’t follow(ID Cards). The protesters and petitioners also demanded in High Court that it is an essential religious practice. However, it is not the case because not all the Muslim students in India regularly abide by the concerned religious dress code, whereas, it is not even clear whether Hijab is a mandatory practice or not and that’s why article 25 isn’t violated. The protesters are also brought an argument with respect to Sikh turbans but turban is a well-defined compulsion for Amritdhari Sikhs, it’s not their matter of choice and it's an essential religious right to them. Adding to that turban isn’t creating any security issues but Hijab with niqab causes many issues because of the covered faces.
The outrage which was seen in the schools and colleges among the students, it was not totally organic, organizations like PFI, CFI which have terror charges against them and have been previously involved in multiple riots in India were using the concerned stage to peddle their agenda for their own benefit. The four main faces of the protest and petitioner Muskaan, Ayesha, Reshma, Aliya created their twitter handle just before the outrage. They used it to provoke other muslims girls and they were using Same type of tweets alongside Muslims PFI,CFI leaders. After that Many Muslim students who were not wearing Hijab previously and maintained school uniform, they also started to come to institutions with their Hijabs on, hence, Karnataka government had to close schools and colleges till further improvement in the case. Principals of at least 3 colleges in kundapur told ThePrint that while some muslim students had always worn the Hijab to classes, the number of had increased effort since the road took off in January.
Karnataka High Court Verdict:
On March 15th 2022, a three-Judge Bench of the Karnataka High Court comprising Chief Justice Ritu Raj Awasthi and Justices Krishna Dixit and J.M. Khazi upheld the ban on the hijab in the State’s educational institutions.
The Karnataka Government had on February 5th 2022 issued an Order barring students from wearing the hijab in State educational institutions that had prescribed a dress code. This Order was subsequently challenged at the Karnataka High Court. The Court issued an Interim Order on February 11th, barring all religious symbols, including hijabs and saffron shawls, from being worn in classrooms.
In its March 15th Judgment upholding the ban, the Court addressed four principal questions.
Is Wearing the Hijab Protected by the Right to Freedom of Conscience?
Muslim students had argued that the ban on the hijab violated their Right to Freedom of Conscience under Article 25 of the Constitution of India, 1950.
Citing Bijoe Emmanuel v State of Kerala, 1986, Muslim students argued that since wearing the hijab is a part of their conscientious belief, it must be protected. Delving into the essentiality of the practice is not required in order to determine whether a Right to Freedom of Conscience is at stake.
In the Judgment, the Court created a distinction between ‘Freedom of Conscience’ and ‘Religious Expression’, claiming that while conscience is an internal belief, religious expression is an outward expression of this belief. Wearing the hijab is a form of religious expression, and must be subject to the Essential Religious Practices test.
Is Wearing the Hijab an Essential Religious Practice under Islam?
The Court held that wearing the hijab is not an Essential Religious Practice. It did not merit protection under Article 25 of the Constitution of India, 1950.
Muslim students had argued the hijab ban violated their Right to Religious Expression under Article 25.
Arguing that wearing the hijab is an Essential Religious Practice, Muslim students referred to Islamic scriptures and claimed that wearing the hijab is an indispensable aspect of their religion. The State cannot impose restrictions on this Essential Religious Practice.
The Court stated that wearing the hijab is not a religious practice. Rather, it is a cultural practice. The hijab evolved as a measure to protect the security of women, and bore a nexus to the socio-cultural conditions that existed at the time the Quran was written. It cannot be regarded as a quintessential aspect of the religion.
Further, the Court stated that even if it were to accept that wearing the hijab is an Essential Religious Practice, the practice would receive constitutional protection only if it did not conflict with constitutional values such as equality and dignity. The requirement that a practice must be an Essential Religious Practice for constitutional protection is a threshold requirement. However, in this case, the practice of wearing the hijab does not cross this threshold.
Does the Ban on the Hijab in Classrooms Violate the Right to Freedom of Expression and the Right to Privacy?
The Court held that the ban on the hijab in State educational institutions did not violate their Right to Freedom of Speech and Expression under Article 19(1)(a) of the Constitution.
The Muslim students had argued that wearing the hijab is an element of ‘expression’ under Article 19(1)(a), citing National Legal Services Authority v Union of India, 2014. The students further claimed that wearing the hijab is protected by the Right to Privacy. In this regard, students must be provided with ‘reasonable accommodations’ allowing them to exercise this right.
The Court referred to the global consensus that uniforms and dress codes may be imposed in educational institutions. The State government’s imposition of a dress code is a reasonable restriction and does not offend constitutionally protected rights as it is ‘religion-neutral’ and ‘universally applicable’ to all students. It noted that the dress code in fact promotes the principles of secularism. Further, the Court stated that the Muslim students were challenging the violation of ‘derivative rights’ and not their ‘substantive rights’.
The Court conceded that the right to choose what one wears is a facet of one’s autonomy and expression. However, this must be subject to reasonable restrictions. In qualified public spaces such as schools, freedom may be curtailed to maintain discipline and decorum.
The Court did not accept the contention that students may be allowed to wear the hijab in a colour and design that matches the uniform. This is because if allowed, ‘the school uniform ceases to be uniform’.
Is the Government Order Purportedly Banning the Hijab Valid?
The Court upheld the validity of the Order issued on February 5th by the State government. It held that the Order was issued in furtherance of the Karnataka Education Act, 1983. The Government had the power to prescribe a dress code under the s 133(2) of the Act, which empowers the Government to give effect to the purposes of the Act by issuing Orders and forming bodies such as the College Development Committees.
The Bench refused to direct a disciplinary enquiry against the principal and teachers of the Government PU College where students were first prohibited from wearing the hijab.
The Court stated that it found no credence in the petition requesting the Court to direct an investigation into the involvement of Islamic organisations in the protests against the hijab ban.
Supreme Court will soon rule on Muslim headscarves in public schools.
It is very painful to see such reaction from one part of our society. Where first world countries like France, Switzerland, Austria, Belgium, Netherlands are taking steps to be free from these religious obligations our society is still fighting for it.
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