The Karnataka High Court has reserved Judgment in a batch of pleas filed by certain students against the ban on wearing the hijab inside educational campuses. The High Court had asked all the parties, as well as those who had filed an intervention application, to file their written submissions to the Court on the last day of the hearing(25th February). The High Court bench headed by Chief Justice Ritu Raj Awasthi heard on a day-to-day basis during the last two weeks a batch of petitions filed by a few Muslim girls seeking permission to wear the hijab in educational institutions where a uniform has been prescribed. It may be recalled that on February 10th, the full bench had passed an interim order saying that pending consideration of these petitions, all students regardless of their religion or faith are restrained from wearing saffron shawls (Bhagwa), scarf, hijab, religious flags or the likes within the classroom, until further orders. The bench had also made it clear that this order is confined to institutions wherein the College Development Committees (CDCs) have prescribed dress code/uniform for the students.
Article 25 (1) of the Constitution of India recognises the freedom of conscience and free profession, practice and propagation of religion but subject to public order, morality, health and other restrictions laid down in Article 25(2).
Article 25 is enacted as hereunder:
“(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, practice 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, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.”
Article 25 deals with freedom of conscience and free profession, practice and propagation of religion and says that 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. The seven-Judge Constitutional bench of the Supreme Court had devised the Doctrine of essential religious practice in the case of Commissioner, Hindu Religious Endowments, Madras v. Sri Laskhmindra Thirtha Swamiar of Sri Shirur Mutt[1] (Shirur Mutt case) in 1954. The Court in its judgment held that only those practices/rituals which are considered to be integral to a religion shall be protected, and took upon itself the responsibility of determining what is an essential or non-essential practice in a religion. Now this doctrine is followed in almost all cases dealing with the right to religious practice; for example, in Dr. M. Ismail Faruqui v. Union of India[2], the Supreme Court held that the mosque is not essential to the Muslim religion, and a Muslim person can conduct namaz anywhere.
The consequence of declaring Hijab as an essential religious practice is bound to have huge ramifications because it takes the already existent element of compulsion which forces people to wear a hijab or face expulsion or be ostracised from the community, to a whole new level, eventually infringing upon one’s freedom of choice under Article 21. Furthermore, it is worthwhile to note that the Sabarimala judgment[3] has been sent for review in which the Supreme Court will determine the validity of the essential religious practice doctrine.
However, regardless of whether it is protected under Article 25 or the essential religious practices of test, the choice of deciding whether to were a hijab in classroom would be an invocation of Article 19(1)(a) {freedom of expression} read with Article 19(2) {reasonable restrictions}.
Article 19(1)(a) is related to the freedom of speech and expression. Article 19(2) provides that nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
The apex court in its landmark judgment of 1986, Bijoe Emmanuel v. State Of Kerala[4] dealt with the expulsion of three children belonging to a sect of Christianity, called Jehovah’s Witnesses, by the headmistress of their school for not singing the National Anthem during the morning assembly. The facts of the case of Bijoe Emmanuel v. State Of Kerala[5] may not be squarely related to the facts of the case at hand as at the crux of the issue was the right to remain silent.
The Kerala High Court in Fathima Thasneem v. State of Kerala[6] had addressed the issue of wearing religious dress in a private educational institution and had held thus:
“9. The Apex Court in Asha Renjan and Others v. State of Bihar and Others [(2017) 4 SCC 397] accepted the balance test when competing rights are involved and has taken a view that individual interest must yield to the larger public interest. Thus, conflict to competing rights can be resolved not by negating individual rights but by upholding larger right to remain, to hold such relationship between institution and students.
- In such view of the matter, I am of the considered view 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. It is purely within the domain of the institution to decide on the same. The Court cannot even direct the institution to consider such a request. Therefore, the writ petition must fail. Accordingly, the writ petition is dismissed. If the petitioners approach the institution for Transfer Certificate, the school authority shall issue Transfer Certificate without making any remarks. No doubt, if the petitioners are willing to abide by the school dress code, they shall be permitted to continue in the same school.”
Deduction
It is highly unlikely that the Hon’ble Court would allow apparel covering the whole body with only slits around the eye in a Government school as it pertains to a wider issue of identification of the persons entering the premises of an educational institution in which kids of all ages study and their security is of utmost importance. The Court however is likely to recognise the freedom of choice of the students who want to wear a headscarf in a Government school but that would be subject to the institution rules and the Karnataka Education Act, 1983. The Court may also note its findings on whether wearing of hijab constitutes an essential religious practice on the touchstone of the essential religious practice test as laid down in the landmark decisions of the Supreme Court including the Shirur Mutt case or may leave it open for the Supreme Court to decide during the hearings of the review petitions to the Sabarimala Judgement regarding the question of validity of the essential religious practice doctrine.
[1] 1954 SCR 1005
[2] AIR 1995 SC 605 A
[3] Indian Young Lawyers Association and Ors. v. the State of Kerala and Ors. 2018 SCC OnLine SC 1690
[4] 1986 SCR (3) 518
[5] Ibid.
[6] WP(C) No. 35293 of 2018
Disclaimer by Lex Erudites: Most of the issues discussed herein above are under the consideration of the Hon’ble Court (sub-judice) and the perusal of the issues involved is strictly for educational purposes.
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