Dismayed as to how all of a sudden that too in the middle of an academic term the issue of hijab is generated and blown out of proportion, Court remarked that some ‘unseen hands’ are at work to engineer social unrest and disharmony in the way ‘hijab imbroglio’ unfolded.
Let’s breakdown the Hijab Case in the simplest way:
What was the issue?
The whole issue was the aftermath of a Government Order dated 5th February, 2022 issued under the Karnataka Education Act 1983 by the State of Karnataka.
What did the Government Order state?
The order directs the College Development Committees all over the State to prescribe ‘Student Uniform’, presumably in terms of Rule 11 of Karnataka Educational Institutions (Classification, Regulation & Prescription of Curricula, etc.) Rules, 1995.
What did the interim order of the Court state?
While expressing that, “Endless agitations and closure of educational institutions indefinitely are not happy things to happen”, the Bench of Ritu Raj Awasthi, CJ and Krishna S Dixit and JM Khazi, JJ., restrained all the students regardless of their religion or faith from wearing saffron shawls (Bhagwa), scarfs, hijab, religious flags or the like within the classroom, until further orders.
What did the detailed Judgment pronounce today, consist of?
Four Key questions were dealt with, the first one was:
Q.1 Whether wearing Hijab is a part of essential religious practice in the Islamic faith protected under Article 25 of the Constitution?
- Since ages, India is a secular country. For India, there is no official religion, inasmuch as it is not a theocratic State. The State does not extend patronage to any particular religion and thus, it maintains neutrality in the sense that it does not discriminate against anyone on the basis of religious identities per se.
- Essential Religious Practices should associate with Constitutional values. The person seeking refuge under the umbrella of Article 25 of the Constitution has to demonstrate not only essential religious practice but also its engagement with the constitutional values.
- Holy Quran does not mandate the wearing of a Hijab or Headgear for Muslim women.
“…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.”
- 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 that if the alleged practice of wearing hijab is not adhered to, those not wearing hijab become the sinners, Islam loses its glory and it ceases to be a religion.
Therefore, wearing of hijab by Muslim Women does not form a part of essential religious practice in Islamic faith.
Q.2 Whether there is power to prescribe dress code in educational institutions?
- No reasonable mind can imagine a school without a uniform.
- The power to prescribe uniform as of necessity inheres in every school subject to all just exceptions.
“…it is impossible to instill the scientific temperament which our Constitution prescribes as a fundamental duty vide Article 51A(h) into the young minds so long as any propositions such as wearing of hijab or bhagwa are regarded as religiously sacrosanct and therefore, not open to question. They inculcate secular values amongst the students in their impressionable & formative years.”
“It is nobody’s case that the dress code is sectaraian.”
- Stating that the Court has no quarrel with petitioners’ essential proposition that what one desires to wear is a facet of one’s autonomy and that one’s attire is one’s expression, but the same is subject to reasonable regulation.
- It is too far-fetched to argue that the school dress code militates against the fundamental freedoms guaranteed under Articles, 14, 15, 19, 21 & 25 of the Constitution and therefore, the same should be outlawed by the stroke of a pen.
- Adherence to the dress code is a mandatory for students.
Hence, the prescription of school uniform is only a reasonable restriction constitutionally permissible which the students cannot object to.
Q.3 Validity of Government Order dated 5th February, 2022 providing for prescription of dress codes in educational institutions?
- The said order per se does not prescribe any dress code and it only provides for prescription of uniform in four different types of educational institutions.
- Wearing hijab is not an essential religious practice and school uniform to its exclusion can be prescribed.
“…hardly needs to be stated that uniform can exclude any other apparel like bhagwa or blue shawl that may have visible religious overtones.”
Hence, the government has power to issue the impugned Order dated 5th February, 2022 and that no case was made out for its invalidation.
- 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 access to education.
Q.4 Whether any case is made out in WP 2146 of 2022 sought the issuance of direction for initiating disciplinary inquiry against respondents 6 to 14 and for issuance of quo warranto against respondents 15 and 16?
- The college can prescribe uniform to the exclusion of hijab or bhagwa or such other religious symbols, and therefore, the alleged act of the respondents in seeking adherence to the school discipline & dress code cannot be faltered.
- For seeking a Writ of the said nature, one has to demonstrate that the post or office which the person concerned holds is a public post or public office.
- The Court opined that respondents 15 & 16 do not hold any such position in the respondent school.
Hence, no case is made out in W.P. No.2146/2022 for issuance of a direction for initiating disciplinary enquiry against respondents 6 to 14. The prayer for issuance of Writ of Quo Warranto against respondents 15 and 16 is rejected being not maintainable.
[Resham v. State of Karnataka, 2022 SCC OnLine Kar 315, decided on 15-3-2022]