Hijab Not Essential Religious Practice In Islam, Karnataka HC – Free PDF Download

What has happened?

• Wearing of hijab is not a part of Essential Religious Practice in Islamic faith and Thus, is not protected under Article 25 of the Constitution, the Karnataka High Court has held today.

About the controversy

• The controversy erupted after few Muslim girl students of Govt PU college were denied entry for wearing headscarf.
• They contended that wearing hijab is part of their religious and cultural practice.
• The petition was filed by Muslim girl students, challenging the action of a government PU colleges in denying their entry for wearing a hijab (headscarf).

• The matter was first listed before a single bench of Justice Krishna S. Dixit,
• Which referred the petitions to larger bench observing that “questions of seminal importance” are involved.

Hearing of the case

• Hearing before the Full Bench comprising Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi was conducted for 11 days and judgment was reserved on February 25.
• Senior Advocates Devadatt Kamat, Sanjay Hegde, Professor Ravivarma Kumar, Yusuf Muchhala and AM Dar argued for the petitioners.
• Advocate General Prabhuling Navadgi appeared for the State of Karnataka.
• An important question before the Court in this case was whether wearing of hijab is part of essential religious practise of Islam and whether State interference in such matters is warranted.
• The court was also called to consider whether wearing of hijab partakes the character of right to expression under Article 19(1)(a) of the Constitution and whether restriction can be levied only under Article 19(2).
• The petitioners had also challenged a Government Order dated February 5, which observed that banning hijab will not violate Article 25, and
• Ordered that students should wear the dress code prescribed by the concerned College Development Committees.
• Meanwhile, HC had passed an interim order, restraining the students from wearing any sort of religious clothes in classrooms, regardless of their faith.

What the petitioners said?

• It was the petitioners’ case that wearing Hijab is an essential religious practice under Islam, and suspension of the same, even for a few hours during school,
• Undermines the community’s faith and violates their fundamental rights under Article 19 and 25 of the Constitution.
• They heavily relied on a judgment of the Constitutional Court of South Africa, in KwaZuluNatal and Others v Pillay, which upheld the right of a Hindu girl from South India to wear a nose ring to school.
• Permitting Hijab A National Practice; Even Kendriya Vidyalayas Allow; State Can’t Say It’s Not Essential : Kamat To Karnataka HC
• South African Judgment Allowing Hindu Girl To Wear Nose Ring In School As Cultural Practice Cited Before Karnataka HC
• If Turban Wearing People Can Be In Army, Why Not Hijab Wearing Girls In Classes: Ravi varma Kumar To Karnataka High Court

Govt’s argument

• The Advocate General appearing for the State argued:

1. (i) Wearing of hijab does not fall within the essential religious practise of Islam;
2. (ii) Right to wear hijab cannot be traced to freedom of expression under Article 19(1)(a) of the Constitution;
3. (iii) Government Order dated February 5 empowering College Development Committees (CDCs) to prescribe uniform is in consonance with the Education Act.

• It was further the State’s contention that wearing hijab does not stand the test of constitutional morality and individual dignity,
• Laid down by the Supreme Court in Young Lawyers Association v. State of Kerala (Sabarimala judgment).

What the HC said In its judgement?

The Court said that it has framed the following questions :

1. Whether wearing hijab is ERP in Islamic faith protected under Article 25.
2. Whether prescription of school uniform is violative of rights.
3. Whether notification of Feb 5 apart from being incompetent and manifestly arbitrary violates Articles 14 and 15.
4. Whether any case is made out for issuance of disciplinary inquiry against college authorities.

• Chief Justice Ritu Raj Awasthi, who read out the operative portion of the judgment in the open court, said as follows:
• “Our answers to the questions are, wearing of Hijab by Muslim women does not form Essential Religious Practice in Islamic faith.
• Our second answer is prescription of school uniform is only a reasonable restriction, constitutionally permissible which students cannot object to.”
• “In view of the above, the government has power to issue the notification of February 5 and no case is made out for its invalidation.
• No case is made out for the issuance of disciplinary proceedings against respondents and writ of quo warranto is not maintainable.
• All writ petitions being devoid of merits are dismissed“.

Q) Which of the following can be issued against both public authorities as well as private individuals?

1. Habeas corpus
2. Prohibition
3. Quo Warranto
4. All of the above

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