Deciding dress code is domain of institution; Petition for allowing wearing headscarf dismissed

Kerala High Court: A Single Judge Bench comprising of A. Muhamed Mustaque, J. dismissed a writ petition while giving a detailed analysis and clarity on dominant interest and subservient interest.

The present petition was filed by girl students belonging to the Muslim community with their plea to be allowed to wear the headscarf as well as full sleeve shirt which was inconsistent with the prescribed dress code by the school they were studying in. Since they were unable to follow the prescribed dress code, they filed the present petition.

In Court’s opinion, as one has the liberty to follow its own notions and convictions in regard to the dress code, in the same manner, a private entity also has the Fundamental Right to manage and administer its institution, therefore the Court had to balance the competing Fundamental Rights for resolving the present issue.

By taking reference of the decision from the case Amnah Bint Basheer v. CBSE, 2016 (2) KLT 601, the Court stated that it is the Fundamental Right of the petitioners to choose the dress of their own choice. Further, it was also noted that the right to establish, manage and administer an institution is equally a Fundamental Right.

Fundamental Rights are either in the nature of the absolute right or relative right. Court in the present case examined the prioritization of competing Fundamental Rights in a larger legal principle on which legal system function in the absence of any Constitutional guidance.

“Competing Rights, if not resolved through the legislation, it is a matter for judicial adjudication.”

Court had to balance rights to uphold the interest of the dominant rather than the subservient interest. In the present case, the management of the institution is the dominant interest, as if the management is not given free hand to administer and manage the institution that would denude their fundamental right.

“Where there is priority of interest, individual interest must yield to the larger interest. That is the essence of liberty.”

Thus, the High Court held that the petitioners cannot seek imposition of their individual right as against the larger right of the institution. It is for the institution to decide whether the petitioners can be permitted to attend the classes with the headscarf and full sleeve shirt as it is purely their domain for any decision and Court cannot direct the institution to consider such a request. The writ petition was dismissed. [Fathima Thasneem v. State of Kerala, 2018 SCC OnLine Ker 5267, dated 04-12-2018]

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