Reshma Sultana v State of Karnataka & Ors
[Author: Swati Pandita, Assistant Professor, School of Law, Fairfield Institute of Management & Technology, Delhi]
FACTS
• The Karnataka Government had on February 5th 2022 issued an order barring students from wearing the hijab in State educational institutions that had prescribed a dress code.
• Order said that in colleges that fall under the Karnataka Board of Pre-University Education, dress code prescribed by the College Development Committee or the administrative supervisory committee must be followed. If the administration does not fix a dress code, clothes that do not threaten equality, unity, and public order must be worn.
• As per Section 7(2)(v) of the Karnataka Education Act, 1983 (as mentioned in Reference 1) students of all educational institutions shall behave as one family, without restricting themselves to one class of persons, jointly maintain and uphold public order. Under Section 133 of the Act, the government reserves the right to issue appropriate directions to schools and colleges to ensure maintenance of public order.
• The demand by a section of young women in an Udupi pre-university college to wear their hijabs inside classrooms erupted into a major row after the college denied them entry and some Hindu students turned up in saffron shawls. The issue then spread to other parts of the state, and the government insisted on a uniform norm.
ISSUES
• Is Wearing the Hijab Protected by the Right to Freedom of Conscience?
• Is Wearing the Hijab an Essential Religious Practice under Islam?
• Does the Ban on the Hijab in Classrooms Violate the Right to Freedom of Expression and the Right to Privacy?
• Is the Government Order Purportedly Banning the Hijab Valid?
CONTENTIONS
PETITIONER:
• Wearing of hijab (head – scarf) is an ‘essential religious practice’ in Islam, the same being a Quranic injunction.
• Neither the State Government nor the Schools can prescribe a dress code/uniform that does not permit the students to wear hijab. (AMNAH BINT BASHEER vs. CENTRAL BOARD OF SECONDARY EDUCATION and AJMAL KHAN vs. ELECTION COMMISSION OF INDIA)
• The action of the respondent – schools in insisting upon the removal of hijab in the educational institutions is impermissible, as being violative of the fundamental right guaranteed under Article 25. (SRI VENKATARAMANA DEVARU vs. STATE OF MYSORE and INDIAN YOUNG LAWYERS ASSOCIATION vs. STATE OF KERALA)
• The impugned Government Order is violative of their fundamental right to freedom of conscience and the right to practice their religious faith constitutionally guaranteed under Article 25. (BIJOE EMMANUAL vs. STATE OF KERALA)
• One’s personal appearance or choice of dressing is a protected zone within the ‘freedom of expression’. (NATIONAL LEGAL SERVICES AUTHORITY vs. UNION OF INDIA)
• The action of the State and the schools suffers from the violation of ‘doctrine of proportionality’. (MODERN DENTAL COLLEGE vs. STATE OF MADHYA PRADESH and MOHD. FARUK V. STATE OF MADHYA PRADESH)
• The impugned Government Order suffers from ‘manifest arbitrariness’. (SHAYARA BANO VS. UNION OF INDIA)
• The impugned Government Order suffers from a gross non-application of mind and a misdirection in law since it is founded on a wrong legal premise that the Apex Court (AHSA RENJAN vs. STATE OF BIHAR)
• The Karnataka Education Act, 1983 or the Rules promulgated thereunder do not authorize prescription of any dress code/uniform at all.
• The College Betterment (Development) Committee constituted under Government Circular dated 31.1.2014 is only an extra-legal authority and therefore, its prescription of dress code/uniform for the students is without jurisdiction.
• The College Betterment (Development) Committee which inter alia comprises of the local Member of Legislative Assembly vide the Government Circular dated 31.1.2014, apart from being unauthorized, is violative of ‘doctrine of separation of powers’ (KESAVANANDA BHARATI vs. STATE OF KERALA, RAI SAHIB RAM JAWAYA KAPUR vs. STATE OF PUNJAB, and STATE OF WEST BENGAL vs. COMMITTEE FOR PROTECTION OF DEMOCRACTIC RIGHTS)
• If wearing of hijab disrupts the public order, the State should take action against those responsible for such disruption and not ban the wearing of hijab. Such a duty is cast on the State in view of a positive duty. (GULAM ABBAS vs. STATE OF UTTAR PRADESH, INDIBILY CREATIVE PVT. LTD vs. STATE OF WEST BENGAL)
• Proscribing hijab in the educational institutions apart from offending women’s autonomy is violative of Article 14 inasmuch as the same amounts to ‘gender–based’ discrimination which Article 15 does not permit.
• School teachers have been acting in derogation of the Brochure of the Education as they are forcing the students to remove hijab and therefore, disciplinary action should be taken against them.
RESPONDENTS:
• Whatever rights petitioners claim under Article 25 of the Constitution, are not absolute. They are susceptible to reasonable restriction and regulation by law.
• In any circumstance, the wearing hijab arguably as being part of ‘essential religious practice’ in Islam cannot be claimed by the students as a matter of right in all-girl-institutions like the respondent PU College, Udupi.
• Wearing hijab or head scarf is not a part of ‘essential religious practice’ of Islamic faith; the Holy Quran does not contain any such injunctions. Wearing hijab at the most may be a ‘cultural’ practice which has nothing to do with religion.
• The educational institutions of the kind being ‘qualified public places’, the students have to adhere to the campus discipline and dress code as lawfully prescribed since years i.e., as early as 2004.
• The Government Order is compliant with the scheme of the 1983 Act, which provides for ‘cultivating a scientific and secular outlook through education’ and this G.O. has been issued under Section 133 read with Sections 7(1)(i), 7(2)(g)(v) of the Act and Rule 11 of the 1995 Curricula Rules
• These Sections and the Rule intend to give effect to constitutional secularism and to the ideals that animate Articles 39(f) & 51(A).
• The ‘College Betterment (Development) Committees’ have been established vide Government Circular dated 31.01.2014 consistent with the object of 1983 Act and 1995 Curricula Rules.
• Permitting the petitioner – students to wear hijab (head – scarf) would offend the tenets of human dignity inasmuch as, the practice robs away the individual choice of Muslim women; the so called religious practice if claimed as a matter of right, the claimant has to prima facie satisfy its constitutional morality.
JUDGEMENT
• The Court created a distinction between ‘Freedom of Conscience’ and ‘Religious Expression’, claiming that while conscience is an internal belief, religious expression is an outward expression of this belief. Wearing the hijab is a form of religious expression, and must be subject to the Essential Religious Practices test.
• The Court stated that wearing the hijab is not a religious practice. Rather, it is a cultural practice. The hijab evolved as a measure to protect the security of women, and bore a nexus to the socio-cultural conditions that existed at the time the Quran was written. It cannot be regarded as a quintessential aspect of the religion.
• Further, the Court stated that even if it were to accept that wearing the hijab is an Essential Religious Practice, the practice would receive constitutional protection only if it did not conflict with constitutional values such as equality and dignity. The requirement that a practice must be an Essential Religious Practice for constitutional protection is a threshold requirement. However, in this case, the practice of wearing the hijab does not cross this threshold.
• The Court held that the ban on the hijab in State educational institutions did not violate their Right to Freedom of Speech and Expression under Article 19(1)(a) of the Constitution.
• The Court conceded that the right to choose what one wears is a facet of one’s autonomy and expression. However, this must be subject to reasonable restrictions. In qualified public spaces such as schools, freedom may be curtailed to maintain discipline and decorum.
• The Court did not accept the contention that students may be allowed to wear the hijab in a colour and design that matches the uniform. This is because if allowed, ‘the school uniform ceases to be uniform’
• The Court upheld the validity of the Order issued on February 5th by the State government. It held that the Order was issued in furtherance of the Karnataka Education Act, 1983. The Government had the power to prescribe a dress code under the s 133(2) of the Act, which empowers the Government to give effect to the purposes of the Act by issuing Orders and forming bodies such as the College Development Committees.
• The Bench refused to direct a disciplinary enquiry against the principal and teachers of the Government PU College where students were first prohibited from wearing the hijab.
• The Court stated that it found no credence in the petition requesting the Court to direct an investigation into the involvement of Islamic organisations in the protests against the hijab ban.
REFRENCES
https://www.scobserver.in/journal/karnataka-government-order-on-dress-code-for-students/
https://www.scobserver.in/reports/hijab-ban-judgment-summary-karnataka-hc/
https://thewire.in/law/karnataka-hijab-case-verdict
https://drive.google.com/file/d/1uFziSAb9NJ_nji8MFD-fRj_8711jmjK2/view