Recently a spark has been ignited over the controversy of girls wearing 'HIJAB' in schools and other pre-university colleges in Karnataka. The matter is not new yet, it has not been resolved. Several attempts have been made so far to interpret whether wearing Hijab is an essential religious practice in Islam or not. Whether or not schools (state or private) can mandate a uniform ignoring religion. Whether or not letting girls wear what their religion prescribes is against the principles of secularism. Whether or not girls have a right to choose what to wear. Questions are many but so are the answers.

An appeal was filed by girls in the Hon'ble Supreme Court against an order passed by the Karnataka High Court on 15.03.2022, dismissing the challenge to the Government Order dated 5.2.2022.1 The case was heard by a division bench whereby dissenting views were given by both judges. Since the questions raised from the matter are numerous, this piece will discuss a few important elements of the judgement.

SECULARISM:

Inserted in the Preamble of the Constitution by the 42nd Amendment, the meaning of the word 'secular' has been defined and interpreted by many jurists and writers. One simpler definition incurred so far is that religion cannot be mixed with any of the State's secular activities, meaning treating all religions equally, respecting all religions and protecting the practices of all religions. In landmark decisions like Kesavananda Bharti2, S.R. Bommai3, T.M.A Pai Foundation4, Smt. Indira Nehru Gandhi v. Raj Narain5, secularism has been held as the basic structure of the Constitution.

RIGHT TO CHOOSE:

Article 21 of the Indian Constitution provides the Right to life and liberty. It is an umbrella Article which has multiple rights protected under its name. One such right is the Right to choose and privacy as enumerated in the Right to Privacy case of K.S Puttaswamy6.

ESSENTIAL RELIGIOUS PRACTICES:

ERP (Essential Religious Practices) of any religion means the core beliefs upon which the religion is founded. The fundamental test to determine whether a part or practice is essential to a religion is to find out whether the nature of the religion would be changed without that part or practice. If taking away of that part or practice results in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part of the religion.7

Appellant in this case cited various verses and chapters of the Holy Quran to establish the fact that wearing Hijab/Headscarf is an ERP under Islam. Four sources of Mohammedan Law and five duties as enumerated by the Prophet under these sources were produced before the Hon'ble Court.

WEARING UNIFORM AS PRESCRIBED, MANDATORY:

Hon'ble Justice Hemant Gupta, while deciding on this matter, stipulated that all the school students studying in Karnataka should behave in a fraternal manner, transcend their group identity, and develop an orientation towards social justice as stated in the Karnataka Education Act, 1983. He referred to sections 5,7 and 39 of the abovementioned Act for the averments made by the counsels. He, while defining the ambit and scope of essential religious practice, held that wearing Hijab is not an essential religious practice in Islam. It also cannot be compared with Sikhs wearing turbans and carrying a kirpan, since the practices of each faith have to be examined on the basis of the tenets of that religion alone. Thus, Sikhs wearing turban cannot be compared with Islamic girls wearing Hijab.

Also, while dealing with the moot point of freedom of expression and the right to privacy under article 21, Hon'ble Justice, while upholding the Government order, has held that the executive was well within its jurisdiction to ensure that the students come in the uniform prescribed by the College Development Committee. While mentioning altercation done in school uniform, Hon'ble Justice quoted:

"The said provisions show that the mandate of the statute is to renounce sectional diversities, to develop humanism and to cultivate scientific and secular outlook. The sectarian approach that certain students will carry their religious beliefs to secular schools run by the State would be antithesis of the mandate of the statute. All students need to act and follow the discipline of the school. Out of the many steps required to ensure uniformity while imparting education, one of them is to wear the uniform dress without any addition or subtraction to the same. Any modification to the uniform would cease to be the uniform, defeating the very purpose of prescribing under Rule 11 and as mandated by the College Development Committee."

Hon'ble Justice iterated that equality before the law is to treat all citizens equally, irrespective of caste, creed, sex, or place of birth. Such equality cannot be breached by the state based on religious faith. Thus, the right of freedom of expression under Article 19(1)(a) and of privacy under Article 21 are complementary to each other and not mutually exclusive and does meet the injunction of reasonableness for the purposes of Article 21 and Article 14.

SPLIT VERDICT:

Hon'ble Justice Sudhanshu Dhulia, while giving a dissenting opinion on the matter, held that:

"Under our Constitutional scheme, wearing a hijab should be simply a matter of Choice. It may or may not be a matter of essential religious practice, but it still is, a matter of conscience, belief, and expression. If she wants to wear hijab, even inside her class room, she cannot be stopped, if it is worn as a matter of her choice, as it may be the only way her conservative family will permit her to go to school, and in those cases, her hijab is her ticket to education."

Hon'ble Justice held that it should be left to the choice of the girls to decide if they wish to wear Hijab or not even if it does or does not form a part of their ERP. While upholding the right to privacy, he said:

"By asking the girls to take off their hijab before they enter the school gates, is first an invasion on their privacy, then it is an attack on their dignity, and then ultimately it is a denial to them of secular education. These are clearly violative of Article 19(1)(a), Article 21 and Article 25(1) of the Constitution of India."

The order of the Karnataka High Court was set aside, G.O. was quashed, and no restriction was put on girls on wearing hijab anywhere in schools and colleges in Karnataka.

CONCLUSION:

The question of whether the Hijab is an ERP is a separate debate altogether hence not discussed in this article. Or whether the Courts should pronounce on theology or essential religious practices of any religion at all. There are still more questions than answers which need to be addressed by the larger constitution of the Apex Court. This split verdict has left room for further interpretation on this subject matter. Since the matter has not been decided with a majority, it has been placed before the Hon'ble Chief Justice of India. It will be crucial to see the view of the larger bench on this matter.

Footnotes

1. Aishat Shifa v. State of Karnataka & Ors 2022 LiveLaw (SC) 842

2. Kesavananda Bharati v. State of Kerala & Anr. (1973) 4 SCC 225

3. S.R. Bommai & Ors. v. Union of India & Ors (1994) 3 SCC 1

4. T.M.A. Pai Foundation v. State of Karnataka 1994 SCC (2) 734

5. 1975 (Supp.) SCC 1

6. K.S. Puttaswamy and Anr. v. Union of India & Ors (2017) 10 SCC 1

7. Commissioner of Police & Ors. v. Acharya Jagadishwarananda Avadhuta & Anr, (2004) 12 SCC 770

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