The Controversy
On January 1, when some Muslim students of a college in Karnataka’s Udupi were not allowed to attend classes wearing a hijab as the dress was against the prescribed norms of the college, the College Development Committee President, BJP MLA Ragupathi Bhat, was reported to have advised he students that of they find the dress code impossible to comply they are free to go elsewhere. The situation worsened when the right wing students also came to school wearing saffron scarves. The matter quickly snowballed into a national issue with violent protests breaking out across Karnataka. The BJP led state government had to order closure of the schools and colleges. Since the issue became communally sensitive and led to communal tension the government had to impose curfew for a few days.
Later karnataka government banned both Hizab and saffron scarves in the school and instructed students to follow the school code till an expert committee set by them takes a decision regarding it. Meanwhile both groups, Muslims and Hindus filed a batch of pleas in the high court.
Interim Order of the High Court on Hizab Controversy
On February 10 a full bench of the Karnataka high court passed an interim order prohibiting all students from wearing saffron shawls, scarf, hizab, religious flag or the likes within the classroom regardless of their faith until further orders. It also clarified in the interim order that the ruling is confined only to those colleges where the CDCs have prescribed a dress code.
The Arguments and Pleas
The school in its plea in front of the court insisted that wearing hizab is not a part of Muslim religion and the practice must pass the test of constitutional morality and individual dignity as expounded in the Supreme Court in the Sabrimala case. The school also said that the constitutional provision of reasonable restriction on religious freedom applies to maintaining discipline in the school.
The supporters of the Hizab argued that Muslim religious practice requires women to wear Hizab when they go out in public. But the school insisted that dress code is mandatory wile in school with no exception on the basis of religion. Senior advocate Devadutta Kanat representing two girls from Kundapura college in the court said that any ban would impinge on fundamental rights and freedom of religion granted under article 25 of the Indian constitution.
The High Court Verdict
After a long hearing during February 10 and 25, the full Judge bench of Justice Rituraj Awasthi was to give a verdict, but the verdict was kept reserved.
The court in its verdict on March 15, said that wearing the hijab is not an essential religious practice in Islam and freedom of religion under Article 25 of the Constitution is subject to reasonable restrictions. It dismissed the petitions filed by Muslim girls studying in pre-university colleges in Udupi seeking the right to wear hijabs in classrooms. Besides it also upheld an order issued on February 5 by the state, which suggested that wearing hijabs can be restricted in government colleges where uniforms are prescribed — and ruled that “prescription of a school uniform” is a “reasonable restriction” that is “Constitutionally permissible”. The court also ruled that no case is made out for initiating disciplinary action against government college authorities in Udupi for barring girls from attending classes with the hijab.
In its order, the full bench said that unlike in countries such as the US and Australia, freedom of religion under the Constitution of India is subject to reasonable restrictions. Article 25 of our Constitution begins with the restriction and further incorporates a specific provision i.e., clause (2) that in so many words saves the power of the state to regulate or restrict these freedoms,” the bench said, adding that “Articles 25 and 26…appreciably embody the limits of that freedom”.
- The Questions on Which the High Court Gave Its Verdict
- These key decisions were presented as answers to four questions formulated by the full bench after it took a “holistic view of the entire matter”:
- Whether wearing the hijab is part of essential religious practice in Islamic faith under Article 25 of the Constitution.
- Whether the prescription of school uniform is a violation of fundamental rights guaranteed under Article 19 (1) (a) that is freedom of expression and Article 21 that is right to privacy.
- Whether the government order dated February 5, 2022, was incompetent, arbitrary and a violation of Articles 14 and 15 of the Constitution, which guarantee the right to equality and protection against discrimination.
- Whether disciplinary action should be initiated against officials of government colleges for barring girls from attending classes with the hijab.
The full bench rejected comparisons drawn by the petitioners with Centre-run Kendriya Vidyalayas where the hijab is allowed to be worn with the school uniform. “We are not impressed by this argument. Reasons are not far to seek: firstly, such a proposal if accepted, the school uniform ceases to be uniform. 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 and faiths,” the order stated.
The High Court added, “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.”
One of the important parts of the verdict was also that the court asked for a “speedy and effective” police probe into the alleged role of “unseen hands” that may have been “at work to engineer social unrest and disharmony” amid protests over the hijab issue in the state last month. The way this issue of rule regarding college dress code became a full- fledged communal tension was clear indicative of involvement of unsocial and politically motivated groups in the row. Although people dither from talking about it the court has indicated towards the underlying reason of escalating communal tension and need for action.
Muslim student approach the Supreme Court on Hizab Controversy
Hours after the High Court delivered its 129-page judgment, a Muslim student from Karnataka approached the Supreme Court against the order, saying it had “failed to note that the right to wear a hijab comes under the ambit of ‘expression’ and is thus protected under Article 19(1)(a) of the Constitution”. The student, Niba Naaz had said in her plea that the right to wear a hijab is also protected by right to conscience under Article 25 of the Constitution, which is an individual right, and that the ‘Essential Religious Practices Test’ ought not to have been applied by the High Court.
The constitution of the country, state government regulations and college and school rules are made to instill uniformity, equality and secularism among the students, which is necessary for developing a common consciousness of modern Indian Nationalism among the youth. Such things should not be taken as an assault on freedom of religious expression. In India in most of the public spaces, people are free to wear their religious symbols and follow their religious codes in worship, marriage or social gatherings. But in some institutions there is a dress code for instilling the spirit of secularism.
Prognosis
The problem is that all such occasions are grabbed by communal elements to fan social and communal tension in the name of false “communal ego”, marked by a “psyche of dominance by the majority” or “a victim sense among the minorities”. The Indian constitution, the Indian state and the Indian law treat everybody equal; the conflicts and differences are due to aberrations in ground level practices. Minority community becomes touchier, when they read a pattern of getting sidelined or discriminated. This feeling needs to be assuaged. Minority community also needs to stand up to the need of the hour for modernization and change as conceived in the constitution. Identity is given sufficient protection in the Indian constitution and it guarantees the fundamental rights to all its citizens regardless of race, religion, caste and gender. However, the ground level aberrations need to be curbed to instill more trust in the minority community.