Important Questions and Answers on Hijab

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A group of Muslim students

The Karnataka High Court ruled in a significant decision that the hijab is not a necessary religious practice and maintained a state government directive regarding the wearing of uniforms in educational institutions.

A three-judge bench consisting of Honorable Chief Justice Ritu RaiAwasthi, Justice Krishna S. Dixit, and Justice J.M. Khazi rejected the argument that the ban violates the constitutional rights protected by articles 14 (right to equality), 15 (no discrimination based on faith), 19 (freedom of speech and expression), and 21 (protection of minorities) in the case of Smt. Resham and ors vs. the State of Karnataka.

The Karnataka government, according to the case’s circumstances, issued a decree forbidding students from donning the hijab in State-run educational facilities with a dress code. Later, this Order was contested at the Karnataka High Court. On February 11th, the Court issued an Interim Order making it unlawful for anybody to wear any religious insignia in a classroom, including hijabs and saffron shawls. In its judgment sustaining the prohibition on March 15, the Court considered four key issues:

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Is the right to freedom of conscience applicable to the hijab?

According to Muslim students, the hijab ban infringed their right to freedom of conscience under Article 25 of the 1950 Indian Constitution.  Muslim students contended that since donning the hijab is a part of their religious religion, it must be protected, citing Bijoe Emmanuel v State of Kerala, 1986. It is not necessary to examine the necessity of the practice to decide if a right to freedom of conscience is in jeopardy.

The Court distinguished between “Freedom of Conscience” and “Religious Expression” in the judgment, noting that whereas conscience is an internal belief, the religious display is an outward expression of this belief. The Essential Religious Practices criteria must be used for hijab-wearing since it is a form of religious expression.

Is the hijab a mandatory religious observance in Islam?

According to the court, donning a headscarf is not a necessary religious practice. It was not deserving of protection under Article 25 of the 1950 Indian Constitution. Muslim students claimed that the hijab ban infringed their Article 25 right to freedom of religion. Muslim students argued that wearing the hijab is a vital part of their religion by citing Islamic scriptures and asserting that it is an essential religious practice. This Essential Religious Practice cannot be restricted by the State.

The hijab is not a religious practice, according to the court. Instead, it is a cultural custom. The hijab was developed as a measure to ensure women’s safety and had a connection to the socio-cultural context in which the Quran was written. It cannot be viewed as religion’s fundamental principle. Additionally, the Court noted that even if it were to accept the hijab as an essential religious practice, it would only be protected by the constitution provided it did not violate other constitutional principles like equality and dignity. A prerequisite for constitutional protection is that a practice must be an Essential Religious Practice. However, in this instance, the hijab-wearing custom does not go beyond that line.

Does the prohibition of the hijab in schools violate people’s freedoms of speech and privacy?

According to the Court, the Constitution’s Article 19(1)(a) right to freedom of speech and expression was not violated by the hijab prohibition in public schools. The Muslim students cited National Legal Services Authority v. Union of India, 2014 to support their claim that the hijab is a form of “expression” under Article 19(1)(a). The students also asserted that the right to privacy protects those who wear the hijab. Students must be given “reasonable accommodations” in this aspect so they can exercise this privilege.

The Court cited the widespread agreement that dresses standards and uniforms may be mandated in educational institutions. Since the dress rule is “religion-neutral” and “universally applied” to all pupils, it is a reasonable restriction and does not violate constitutionally protected rights. It was pointed out that the dress rule does, in fact, further secularist ideals. The Muslim students were arguing that their “derivative rights” had been violated, not their “substantive rights,” according to the court.

The Court acknowledged that one’s freedom of expression and autonomy includes the right to select what one dresses. But there must be logical limitations to this. Freedom may be restricted in appropriate public areas, such as schools, to uphold order and decorum. The Court rejected the argument that pupils might be permitted to wear a hijab that fits their uniform in terms of color and pattern. This is such that “the school uniform ceases to be uniform” if it is permitted.

Is the purported government order outlawing the hijab legitimate?

The Order that the State administration issued on February 5 was upheld by the Court as being lawful. It was decided that the 1983 Karnataka Education Act had been furthered by the Order’s issuance. Under section 133(2) of the Act, which gives the government the authority to issue orders and create entities like the College Development Committees to carry out the Act’s aims, the government had the authority to establish a dress code.

The Bench declined to order a disciplinary investigation against the Government PU College’s principal and instructors, where students were originally forbidden from donning the hijab. The petition asking the court to order an investigation into how Islamic organizations participated in the demonstrations against the hijab ban was rejected by the court, according to the court’s statement.

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