Case BriefsForeign Courts

As the proceedings in #hijabrow continue in Karnataka High Court, we bring you another interesting decision from Foreign Court, wherein the Federal Court of Malaysia laid down some very pertinent observations.


In the year 2006, the Federal Court of Putrajaya deciphered whether the wearing of Serban/turban was essential practice for Muslim boys.

The School Regulations 1997 stipulated that the uniform for male pupils comprised of blue-black long pants, a white short sleeved shirt, white rubber shoes and socks. Regulation 3(f)(v) provided that black or blue songkok was allowed to be worn. However, in Regulation 3(i)(i) all pupils were prohibited from wearing “jubah, turban (serban), topi, ketayap dan purdah.’

In this case from Malaysia, the minors were advised not to wear the turban so as to comply with the School Regulations 1997.

Since the minors continued to refuse to comply with the regulations, they were expelled from the school. On Challenging the said decision, the High Court found that the School Regulations 1997 were unconstitutional but the same was reversed by the Court of Appeal.

Federal Court considered the question, whether the School Regulations 1997, in so far as it prohibited the wearing of turban by the students of the school as part of the school uniform during school hours was constitutional or not?

The Court of Appeal decided whether the right to wear a “Serban” was an integral part of the religion of Islam. To answer this Court said that “there was not a shred of evidence before the learned judge confirming that the wearing of a serban is mandatory in Islam and is, therefore, an integral part of Islam.”

In applying “the integral part of the religion” test Court of Appeal referred to certain decisions from the Indian Supreme Court i.e. Commissioner, Hindu Religious Endowments, Madras, v. Sri Lakshmindra Thirtha Swamiar, AIR 1954 SC 282, Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853, Javed v. State of Haryana, (2003) 8 SCC 369 and Commissioner of Police v. Acharya Jagadishwaranada Avadhuta [2004] 2 LRI 39.

Proceeding further, the Court added that, the Court of Appeal was criticised for relying on Indian authorities, especially because of the differences between the provisions of the Indian Constitution and the Federal Constitution, in particular, the preamble to the Indian Constitution declares India to be a secular state and no religion of the state is provided. It is also said, who is to decide whether a particular practice is an integral part of a religion or not?

Federal Court asserted that it was only concerned with the word “practice his religion”.

“…in a country with many religions being practised, to allow a regulation or law to be declared unconstitutional just because someone claims that it prohibits his “religious practice” no matter how trivial it is and even though in a very limited way, would lead to chaos.”

The approach that the Court adopted to was that:

First, there must be a religion.

Secondly, there must be a practice.

Thirdly, the practice is a practice of that religion.

Once the above-said is proved, the Court should then consider the importance of the practice in relation to religion. To add to this, Court elaborated stating that if the practice is of a compulsory nature or “an integral part” of the religion, the Court should give more weight to it. If it is not, the court, depending on the degree of its importance, may give lesser weight to it.

The Court also stated that A total prohibition certainly should be viewed more seriously than a partial or temporary prohibition.”

“Islam is not about turban and beard.”

The Court expressed that, according to Shari’ah the obligation to perform even a mandatory practice like the five daily prayers is only mandatory on Muslims who have attained the age of majority, usually taken to be 15 years of age for boys. It could be seen that with regard to practices that are mandatory, the Shari’ah treats adults and children differently, like any law, for that matter.

In this case, the Court noted that the Al-Quran makes no mention about the wearing of turban and also there had been no “fatwa” in Malaysia on the wearing of the turban.

Bench expressed that,

“I accept that the Prophet (P.B.U.H.) wore turban. But he also rode a camel, built his house and mosque with clay walls and roof of leaves of date palms and brushed his teeth with the twig of a plant. Does that make the riding a camel a more pious deed than travelling in an aeroplane? Is it preferable to build houses and mosques using the same materials used by the Prophet (P.B.U.H.) and the same architecture adopted by him during his time? In Malaysia, Muslim houses and mosques would leak when it rains! There would be no Blue Mosque or Taj Mahal, not even the present Masjid Al-Haram and Masjid Al-Nabawi, Alhambra or Putrajaya that the Muslims can be proud of! Again, is it more Islamic to brush one’s teeth with a twig than using a modern tooth brush with tooth paste and water to wash in the privacy of one’s bathroom?” 

Talking about prohibition, the Court asserted that the students, primary school students of the school, are not allowed to wear the turban as part of the school uniform, ie, during school hours. They are not prevented from wearing the turban at other times.

Even in school, certainly, they would not be prevented from wearing the turban when they perform, say, their “Zohor” prayer in the school “surau” (prayer room). But, if they join the “Boy Scout”, it is only natural if they are required to wear the Scouts uniform during its activities. Or, when they play football, naturally they would be required to wear shorts and T- shirts. Should they be allowed to wear “jubah” when playing football because it was the practice of the Prophet (P.B.U.H.) to wear jubah?

Court even suggested changing the school in case there was an issue with the dress code, for e.g., to a “pondok” school that would allow them to wear the turban.

Interestingly, moving forward the Court detailed out by stating that the appellants were in their formative years and when they should be attending school, studying and playing, obeying the school discipline, etc. but they were made to spend those years being different from other students, disregard the school regulations, disobey the teachers, rebel against the authorities.

After placing down all the above observations, the Court held that the School Regulations 1997 in so far as it prohibited the students from wearing a turban as part of the school uniform during school hours did not contravene the provision of Article 11(1) of the Federal Constitution and it was not unconstitutional.


Read other decisions that were on similar lines


To Wear or Not to Wear? Precedents on dilemma of wearing ‘Headscarf’ from the Kerala High Court

Is the Bhinder case relevant in Hijab ban row? Canadian SC’s decision in Rule conflicting with religious tenet of an employee

https://www.scconline.com/blog/post/2022/02/18/what-bombay-high-court-held-when-a-muslim-girl-raised-the-issue-that-asking-her-not-to-wear-a-headscarf-in-school-violates-her-fundamental-right-under-article-25-of-the-constitution/

Case Briefs

In continuation to analyse a few cases wherein the issue of “headscarf” was touched upon by the Courts, today let’s see what the Bombay High Court said on the wearing of “headscarf” by Muslim girl students.


Bombay High Court in Fathema Hussain Sayed v. Bharat Education Society, 2002 SCC OnLine Bom 713 dealt with the issue wherein a minor student was asked by the Principal of the school to not attend the class if she wore the head scarf.

As per Fathema the said headscarf did not violate the dress code or the discipline of the school, hence principal’s direction was violative of her fundamental right of freedom of conscience and profession, propagating and practising Islam religion.

The Division Bench of R.M. Lodha and D.B. Bhosale, JJ. firstly, the Court noted that the petitioner for the self-same relief had earlier withdrawn the petition and the same was dismissed by this Court, and it was clear from the order that neither liberty to approach the Court again was sought nor granted.

Bombay High Court in view of the said Order had observed that, that neither liberty to approach the Court again was sought nor granted. It was against public policy to permit a litigant to approach the Court again and again once the matter had been withdrawn by him unconditionally.

Though the Bench added that, even if Court assumed that the minor may be permitted to file a second petition, High Court found it difficult to accept the submission of the counsel that by not permitting the petitioner to wear head scarf, the fundamental right of the petitioner under Article 25 would be violated.

Proceeding further, the Court referred to Article 25 of the Constitution, which read as follows:

“25. Freedom of conscience and free profession, practice and propagation of religion.— (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—

(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Explanation I.— The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.

Explanation II.— In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jains or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.”

Elaborating further on the matter, the Division Bench stated that, by asking the student to maintain the dress code prescribed by school, how can it be said that it was a violation of her fundamental right of freedom of conscience and free profession, practice and propagation of religion?

While referring to the restrictions imposed in Article 25, Court added that there did not seem to be such established practice and profession of the Islam religion from covering their heads by the girls studying in all girls school.

The Counsel for the petitioner had placed reliance on verse 31 of Chapter 24-64 of Holy Quran (Quran-E-Majid).

The very significant observation of the High Court, in this case, was that:

“A girl student not wearing the head scarf or head covering studying in exclusive girls section cannot be said to in any manner acting inconsistent with the aforesaid verse 31 or violating any injunction provided in Holy Quran. 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.” 

Bombay High Court did not find any merit in the contention with regard to the direction of the principal being violative of Article 25 of the Constitution of India.


Also Read


Hijab Case | When Karnataka High Court temporarily restrained students from wearing hijab, religious flags, saffron shawls, etc.: Read Court’s interim order || A Recap

 

To Wear or Not to Wear? Precedents on dilemma of wearing ‘Headscarf’ from the Kerala High Court

Is the Bhinder case relevant in Hijab ban row? Canadian SC’s decision in Rule conflicting with religious tenet of an employee

 

Case BriefsHigh Courts

In Nadha Raheem v. C.B.S.E2015 SCC OnLine Ker 21660, Kerala High Court’s Single Judge Bench in the year 2015 dealt with petitions by two female students belonging to the Muslim community contending that the dress code prescribed by the Central Board of Secondary Education (C.B.S.E) of wearing half sleeve kurta/salvar would prejudice them, as their religious custom mandates them to wear a headscarf and also full sleeve dresses.

In the said case, the Standing counsel for C.B.S.E submitted that the dress code was specified by the C.B.S.E not intending to harass any student, on the contrary, to ensure that no untoward incident shall occur which would lead to cancellation of the examination.

The Standing Counsel had placed the Supreme Court decision by highlighting the extracts which revealed the indigenous methods by which copying was resorted to by means of electronic gadgets, wired to the body itself, and camouflaged by full sleeve dress and so on and so forth.

The Single Judge Bench of the Court noted that only two students came up before the Bench.

In Court’s opinion, the dress code could not be said to be wrong or improper.

However, Justice K. Vinod Chandran observed that,

 “…it cannot be ignored that in our country with its varied and diverse religions and customs, it cannot be insisted that a particular dress code be followed failing which a student would be prohibited from sitting for the examinations.”

Hence, the Court opined that no blanket orders were required in the petitions apprehending that they would be prohibited in writing the examination for the reason of their wearing a dress conducive to their religious customs and beliefs.

In the stated facts and circumstances of the case, High Court had directed that the petitioners who intended to wear a dress according to their religious custom, but contrary to the dress code, shall present themselves before the Invigilator half an hour before the examination and on any suspicion expressed by the Invigilator, shall also subject themselves to any acceptable mode of personal examination as decided by the Invigilator, but however, carried on only by an authorised person of the same sex.

If the Invigilator requires the headscarf or the full sleeve garments to be removed and examined, then the petitioners shall also subject themselves to that, by the authorised person, High Court stated.

Kerala High Court had also asked the C.B.S.E to issue general instructions to its invigilators to ensure that religious sentiments be not hurt and at the same time discipline was not compromised.

In the year 2016, the Kerala High Court while deciding the case of Amnah Bint Basheer v. CBSE, 2016 SCC OnLine Ker 41117, addressed a matter wherein prescription of dress code for All India Pre-Medical Entrance Test-2016 was questioned by the parties who professed Islam.

The ground on which the parties had challenged the dress code was the violation of the fundamental right as guaranteed under Article 25(1) of the Constitution of India.

The parties urged the Court to examine religious freedom in the light of the constitutional scheme.

Kerala High Court observed that, 

The State cannot interfere with the practice of religious affairs which would obliterate his religious identity. The environment in which one has to live is determined by the patterns of the idea formed by his conscience subject to the restrictions as referred under Article 25(1).

Adding to the above observation, in this decision, the Bench also stated that it was open for the State to regulate or make laws consistent with the essential practice of religion. However, while making a regulation or a law, the true import of the essential practice shall not be supplanted.

Petitioners case was that Shariah mandates women to wear the headscarf and full sleeve dress and therefore, any prescription contrary would be repugnant to the protection of the religious freedom.

“..the analysis of the Quranic injunctions and the Hadiths would show that it is a farz to cover the head and wear the long sleeved dress except face part and exposing the body otherwise is forbidden (haram). When farz is violated by any action opposite to farz that action becomes forbidden (haram).”

 “The right of women to have the choice of dress based on religious injunctions is a fundamental right protected under Article 25(1), when such prescription of dress is an essential part of the religion.” 

Giving significance to the Board’s attempt of ensuring transparency and credibility of examinations, Court stated that to harmoniously accommodate the competing interest without there being any conflict or repugnancy. The interest of the Board can be safeguarded by allowing the invigilator to frisk such candidates including by removing scarf. However, safeguard has to be ensured that this must be done honouring the religious sentiments of the candidates.

In 2018, Kerala High Court in Fathima Thasneem v. State of Kerala2018 SCC OnLine Ker 5267, while addressing the petition filed by Muslim girl students with the 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, observed that 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.

Justice A. Muhamed Mustaque while referring to the decision of Amnah Bint Basheer v. CBSE, 2016 SCC OnLine Ker 41117, stated that it is the Fundamental Right of the petitioners to choose the dress of their own choice.

Further, the Court held that it had to balance rights to uphold the interest of the dominant rather than the subservient interest and in the facts, in hand, the management of the institution was the dominant interest.

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

Hence the Kerala High Court held that the Muslim girl students could seek the imposition of their individual rights as against the larger right of the institution. Therefore, it was for the institution to decide whether the petitioners could be permitted to attend the classes with the headscarf and full sleeve shirt.


Presently the Karnataka High Court has been dealing with a somewhat similar situation, wherein the challenge was with regard to the insistence of certain educational institutions that no girl students shall wear the hijab (headscarf) whilst in the classrooms.

On 10-2-2022, the High Court on being pained by the agitations and closure of educational institutions expressed that

“…ours is a country of plural cultures, religions & languages. Being a secular State, it does not identify itself with any religion as its own. Every citizen has the right to profess & practise any faith of choice, is true.”

The Bench of Ritu Raj Awasthi, CJ and Krishna S Dixit and JM Khazi, JJ., temporarily 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.

The proceedings in the said matter are still ongoing and the Court is yet to pronounce its decision on the matter.

COVID 19Hot Off The PressNews

In order to further contain the spread of COVID-19, Delhi High Court notified that till further orders, while appearing before this High Court or its Subordinate Courts, through videoconferencing or otherwise, the Advocates are exempted from wearing gowns, coats, Sherwanis, Achkans, Chapkans and Jackets.

However, they shall be dressed in a sober and dignified manner and expected to adhere to the rest of the Dress Code, as prescribed in Part VI, Chapter IV of the Bar Council of India Rules (Rules framed under Section 49(1) (gg) of the Advocates Act, 1961).

The above directions shall come into force with immediate effect.


Delhi High Court

[Circular dt. 25-05-2020]

Hot Off The PressNews

On 13.05.2020, the Supreme Court notified that all the advocates to wear “plain white-shirt/white-salwar-kameez/ white saree, with a plainwhite neck band” during the hearings before the Supreme Court of India through Virtual Court System till medical exigencies exist or until further orders. The said decision was taken after considering the medical advice, as a precautionary measure to contain spread of Coronavirus (COVID-19) infection under the prevailing conditions.

Click here to read the Notification.

Kerala High Court
Case BriefsHigh Courts

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.

Analysis:
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]