“The Holy Quran does not mandate wearing of hijab or headgear for Muslim women rather it was traditionally worn as a measure of social security”

Karnataka High Court: A Full Bench of Ritu Raj Awasthi CJ, Krishna S. Dixit J and J. M Khazi J. dismissed the petitions being devoid of merit.

Writ Petition Details

  1. W.P No. 2347 of 2022 praying for a direction to the respondents to permit the petitioner to wear hijab (head – scarf) in the class room, since wearing it is a part of ‘essential religious practice’ of Islam.
  2. WP No. 2146 of 2022 praying to initiate enquiry against the Respondent 5 college and Respondent 6 i.e. Principal for violating instruction enumerated under Chapter 6 heading of “Important information” of Guidelines of PU Department for academic year of 2021-22 for maintaining uniform in the PU college, conduct enquiry against the Respondents for their Hostile approach towards the petitioners students and interfering in the administration of Respondent no 5 school and promoting their political agenda.
  3. WP Nos. 2880 of 2022, 3038 of 2022 & 4309 of 2022 challenges G.O. dated 05-02-2022 issued under section 133 read with sections 7(2) & (5) of the Karnataka Education Act, 1983 (hereafter ‘1983 Act’) provides that, the students should compulsorily adhere to the dress code/uniform as follows:

a. in government schools, as prescribed by the government;

b. in private schools, as prescribed by the school management;

c. in Pre–University colleges that come within the jurisdiction of the Department of the Pre–University Education, as prescribed by the College Development Committee or College Supervision Committee; and

d. wherever no dress code is prescribed, such attire that would accord with ‘equality & integrity’ and would not disrupt the ‘public order’.

4. WP No.3424 of 2022 prayed to permit Female Muslim students to sport Hijab provided they wear the stipulated school uniform also.

5. WP No.4338 of 2022 prayed that the CBI/NIA or such other investigating agency should make a thorough investigation in the nationwide agitation after the issuance of the GO to ascertain the involvement of radical organizations such as Popular Front of India, Students Islamic Organization of India, Campus Front of India and Jamaat-e-Islami; to hold and declare that wearing of hijab, burqa or such “other costumes by male or female Muslims and that sporting beard is not an integral part of essential religious practice of Islam” and therefore, prescription of dress code is permissible.

 Issues Framed

  1. Whether wearing hijab/head-scarf is a part of ‘essential religious practice’ in Islamic Faith protected under Article 25 of the Constitution?
  2. Whether prescription of school uniform is not legally permissible, as being violative of petitioners Fundamental Rights inter alia guaranteed under Articles, 19(1)(a), (i.e., freedom of expression) and 21, (i.e., privacy) of the Constitution?
  3. Whether the Government Order dated 05-02-2022 apart from being incompetent is issued without application of mind and further is manifestly arbitrary and therefore, violates Articles 14 & 15 of the Constitution?
  4. Whether any case is made out in W.P.No.2146 of 2022 for issuance of a direction for initiating disciplinary enquiry against respondent 6 to 14 and for issuance of a Writ of Quo Warranto against respondent 15 & 16?

Court’s Observations

Issue 1 

What is an essential religious practice?

Indian Young Lawyers Association surveyed the development of law relating to essential religious practice and the extent of its constitutional patronage consistent with the long standing view. Ordinarily, a religious practice in order to be called an ‘essential religious practice’ should have the following indicia:

  • Not every activity associated with the religion is essential to such religion. Practice should be fundamental to religion and it should be from the time immemorial.
  • Foundation of the practice must precede the religion itself or should be co-founded at the origin of the religion.
  • Such practice must form the cornerstone of religion itself. If that practice is not observed or followed, it would result in the change of religion itself and,
  • Such practice must be binding nature of the religion itself and it must be compelling.

That a practice claimed to be essential to the religion has been carried on since time immemorial or is grounded in religious texts per se does not lend to it the constitutional protection unless it passes the test of essentiality as is adjudged by the Courts in their role as the guardians of the Constitution.

Which authoritative Commentary on Holy Quran was relied by Court?

‘The Holy Quran: Text, Translation and Commentary’ by Abdullah Yusuf Ali, (published by Goodword Books; 2019 reprint), there being a broad unanimity at the Bar as to its authenticity & reliability. The speculative and generalizing mind of this author views the verses of the scriptures in their proper perspective. 

Is Hijab a Quranic injunction and Islam specific?

Indian jurist Abdullah Yusuf Ali referring to sūra (xxxiii), verse 59, at footnote 3765 in his book states: “Jilbāb, plural Jalābib: an outer garment; a long gown covering the whole body, or a cloak covering the neck as bosom.”. In the footnote 3760 to Verse 53, he states: …In the wording, note that for Muslim women generally, no screen or hijab (Purdah) is mentioned, but only a veil to cover the bosom, and modesty in dress. The screen was a special feature of honor for the Prophet’s household, introduced about five or six years before his death… Added, in footnote 3767 to verse 59 of the same sura, he opines: This rule was not absolute: if for any reason it could not be observed, ‘God is Oft. Returning, Most Merciful.’…” Thus, there is sufficient intrinsic material within the scripture itself to support the view that wearing hijab has been only recommendatory, if at all it is.

The Court observed that whatever is stated in the above sūras, we say, is only directory, because of absence of prescription of penalty or penance for not wearing hijab, the linguistic structure of verses supports this view. This apparel at the most is a means to gain access to public places and not a religious end in itself. It was a measure of women enablement and not a figurative constraint. 

Tracing the history of Hijab

Sara Slininger from Centralia, Illinois in her research paper “VEILED WOMEN: HIJAB, RELIGION, AND CULTURAL PRACTICE” wrote

“Islam was not the first culture to practice veiling their women. Veiling practices started long before the Islamic prophet Muhammad was born. Societies like the Byzantines, Sassanids, and other cultures in Near and Middle East practiced veiling. There is even some evidence that indicates that two clans in southwestern Arabia practiced veiling in pre-Islamic times, the Banū Ismāʿīl and Banū Qaḥṭān. Veiling was a sign of a women’s social status within those societies. In Mesopotamia, the veil was a sign of a woman’s high status and respectability. Women wore the veil to distinguish Slininger themselves from slaves and unchaste women. In some ancient legal traditions, such as in Assyrian law, unchaste or unclean women, such as harlots and slaves, were prohibited from veiling themselves. If they were caught illegally veiling, they were liable to severe penalties. The practice of veiling spread throughout the ancient world the same way that many other ideas traveled from place to place during this time: invasion.”

Thus the Court observed wearing hijab was recommended as a measure of social security for women and to facilitate their safe access to public domain. At the most the practice of wearing this apparel may have something to do with culture but certainly not with religion. The Quran shows concern for the cases of ‘molestation of innocent women’ and therefore, it recommended wearing of this and other apparel as a measure of social security. Thus, it can be reasonably assumed that the practice of wearing hijab had a thick nexus to the socio-cultural conditions then prevalent in the region. The veil was a safe means for the women to leave the confines of their homes. Ali’s short but leading question is premised on this analysis. What is not religiously made obligatory therefore cannot be made a quintessential aspect of the religion through public agitations or by the passionate arguments in courts.

It is not an obligatory overt act enjoined by Muslim religion that a girl studying in all girl section must wear head-covering. The essence of Muslim religion or Islam cannot be said to have been interfered with by directing petitioner not to wear head-scarf in the school.” These observations should strike the death knell to Writ Petition Nos.2146, 2347, 3038/2022 wherein the respondent college happens to be all-girl-institution (not co-education).

 Is wearing Hijab a matter of conscience?

Conscience is by its very nature subjective. Merely stating that wearing hijab is an overt act of conscience and therefore, asking them to remove hijab would offend conscience, would not be sufficient for treating it as a ground for granting relief. Freedom of conscience as already mentioned above, is in distinction to right to religion as was clarified by Dr. B.R.Ambedkar in the Constituent Assembly Debates. There is scope for the argument that the freedom of conscience and the right to religion are mutually exclusive. Even by overt act, in furtherance of conscience, the matter does not fall into the domain of right to religion and thus, the distinction is maintained. There is no evidence that the petitioners chose to wear their headscarf as a means of conveying any thought or belief on their part or as a means of symbolic expression..

The Court thus held In view of the above discussion, we are of the considered opinion that wearing of hijab by Muslim women does not form a part of essential religious practice in Islamic faith.”

Issue 2

Whether prescription of school uniform to the exclusion of Hijab violates Articles 14, 14, 19(1)(a) and 21?

The prescription of dress code for the students that too within the four walls of the class room as distinguished from rest of the school premises does not offend constitutionally protected category of rights, when they are ‘religion-neutral’ and ‘universally applicable’ to all the students. There shall be two categories of girl students viz., those who wear the uniform with hijab and those who do it without. That would establish a sense of ‘social-separateness’, which is not desirable. It also offends the feel of uniformity which the dress-code is designed to bring about amongst all the students regardless of their religion & faiths. As already mentioned above, the statutory scheme militates against sectarianism of every kind. Therefore, the accommodation which the petitioners seek cannot be said to be reasonable. The object of prescribing uniform will be defeated if there is non-uniformity in the matter of uniforms. Youth is an impressionable period when identity and opinion begin to crystallize. Young students are able to readily grasp from their immediate environment, differentiating lines of race, region, religion, language, caste, place of birth, etc. The aim of the regulation is to create a ‘safe space’ where such divisive lines should have no place and the ideals of egalitarianism should be readily apparent to all students alike. Adherence to dress code is a mandatory for students.

Court’s Observation on petitioner’s citing foreign decisions and policies

Malaysia being a theistic Nation has Islam as the State religion and the court in its wisdom treated wearing hijab as being a part of religious practice. We have a wealth of material with which a view in respectful variance is formed. Those foreign decisions cited by the other side of spectrum in opposing hijab argument, for the same reasons do not come to much assistance. In several countries, wearing of burqa or hijab is prohibited, is of no assistance to us. Noble thoughts coming from whichever direction are most welcome. Foreign decisions also throw light on the issues debated, cannot be disputed. However, courts have to adjudge the causes brought before them essentially in accordance with native law.

The Court thus held “In view of the above, we are of the considered opinion that the prescription of school uniform is only a reasonable restriction constitutionally permissible which the students cannot object to.” 

Issue 3

Validity of Government Order

The subject matter of the Government Order is the prescription of school uniform. Power to prescribe, avails in the scheme of 1983 Act and the Rules promulgated thereunder. Section 133(2) of the Act which is broadly worded empowers the government to issue any directions to give effect to the purposes of the Act or to any provision of the Act or to any Rule made thereunder. This is a wide conferment of power which obviously includes the authority to prescribe school dress code. It is more so because Rule 11 of 1995 Curricula Rules itself provides for the prescription of school uniform and its modalities. The Government Order can be construed as the one issued to give effect to this rule itself. Such an order needs to be construed in the light of the said rule and the 2014 Circular, since there exists a kinship inter se. Therefore, the question as to competence of the government to issue order of the kind is answered in the affirmative and thus the question of un-sustainability of some of the reasons on which the said Order is constructed, pales into insignificance.

Court’s observation on Impugned Order

Certain terms used in a Government Order such as ‘public order’, etc., cannot be construed as the ones employed in the Constitution or Statutes. There is a sea of difference in the textual structuring of legislation and in promulgating a statutory order as the one at hands. The draftsmen of the former are ascribed of due diligence & seriousness in the employment of terminology which the government officers at times lack whilst textually framing the statutory policies. Nowadays, courts do often come across several Government Orders and Circulars which have lavish terminologies, at times lending weight to the challenge. The words used in Government Orders have to be construed in the generality of their text and with common sense and with a measure of grace to their linguistic pitfalls. The text & context of the Act under which such orders are issued also figure in the mind. The impugned order could have been well drafted, is true. ‘There is scope for improvement even in heaven’ said Oscar Wilde.

The Court thus held In view of the above, we are of the considered opinion that the government has power to issue the impugned Order dated 05.2.2022 and that no case is made out for its invalidation.”

Issue 4

What the Chief Architect of our Constitution observed more than half a century ago about the purdah practice equally applies to wearing of hijab there is a lot of scope for the argument that insistence on wearing of purdah, veil, or headgear in any community may hinder the process of emancipation of woman in general and Muslim woman in particular. That militates against our constitutional spirit of ‘equal opportunity’ of ‘public participation’ and ‘positive secularism’. Prescription of school dress code to the exclusion of 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. The petition is apparently ill-drafted and pleadings lack cogency and coherence that are required for considering the serious prayers of this kind.

Court’s observation on the writ of Quo Warranto

For seeking a Writ of this nature, one has to demonstrate that the post or office which the person concerned holds is a public post or a public office. In our considered view, the respondent Nos.15 & 16 do not hold any such position in the respondent-school. Their placement in the College Betterment (Development) Committee does not fill the public character required as a pre-condition for the issuance of Writ of Quo Warranto.

The Court thus held In view of the above, we are of the considered opinion that no case is made out in W.P. No.2146/2022 for issuance of a direction for initiating disciplinary enquiry against respondent Nos. 6 to 14. The prayer for issuance of Writ of Quo Warranto against respondent Nos. 15 and 16 is rejected being not maintainable.”

Court’s Concluding Remark

We are also impressed that even Muslims participate in the festivals that are celebrated in the ‘ashta mutt sampradāya’, (Udupi being the place where eight Mutts are situated). We are dismayed as to how all of a sudden that too in the middle of the academic term the issue of hijab is generated and blown out of proportion by the powers that be. The way, hijab imbroglio unfolded gives scope for the argument that some ‘unseen hands’ are at work to engineer social unrest and disharmony.[Resham v. State of Karnataka, 2022 SCC OnLine Kar 315, decided on 15-03-2022]

Arunima Bose, Editorial Assistant has reported this brief.

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