Hijab not an essential religious practice in Islamic : Karnataka HC

The Karnataka High Court Tuesday held that wearing of hijab by Muslim women does not form a part of essential religious practice in Islamic faith.

A three-judge bench led by Chief Justice Ritu Raj Awasthi upheld the Udupi Pre-University Government college order prescribing school uniform that banned hijab, as well as the Karnataka government’s 5 February order that extended its support to the restriction.

According to the court, the restriction on hijab is “reasonable” and constitutionally permissible, which the students cannot object to.

The verdict came on a bunch of petitions questioning the hijab ban for Muslim girls in Udupi’s PU college Karnataka’s 5 February order.

The bench had heard the matter for 11 days before it reserved the verdict on 25 February. On 11 February, the court had passed an interim order, restraining students from displaying religious clothing in school classrooms, applicable to only those schools that prescribed uniforms for its students. With Tuesday’s order, the court’s interim order stands vacated.

“In view of the above, we are of the considered opinion that the government has the power to issue the impugned government order dated 5 February, 2022 and no case is made out for its invalidation,” the court said Tuesday, adding no case is also made out to initiate disciplinary enquiry or issuance of quo warranto against college officials or state government.

“Accordingly, in the above circumstances all these petitions being devoid of merits are liable to be and accordingly are dismissed,” ordered the bench, rejecting all applications filed in the matter.

Following the verdict, advocate for the petitioners in the hijab row said they will soon move the Supreme Court and the girls will “continue their education while exercising their rights to wear hijab”.

Questions about constitutional rights

The hearing in the case witnessed formulation of crucial questions related to constitutional rights, including that under Article 25 (allows freedom of conscience, faith and religion), Article 19 (right to free speech and expression) and the extent to which the state can impose fetters on the two rights.

According to the petitioners, the hijab is an essential religious practice under Islamic law and, thus, is a constitutionally protected right. It was also part of their fundamental right under Article 19 that allows protection of free speech and expression, and can be “restricted” only on reasonable grounds.

But, the ban on hijab cannot be construed as “reasonable,” the petitioners had contended before the court. They argued fundamental rights can be curtailed to achieve three objectives – public order, health and morality. However, the government order does not clarify the objective behind putting the curb on wearing the headscarf, the petitioners said, seeking quashing of the two orders.

They even raised doubts over the validity of the College Development Committee (CDC), which prescribed the uniform, including the hijab ban, and argued the committee lacked jurisdiction under the state law to frame such rules.

On its part, the government of Karnataka denied it had anything to do with framing of uniform guidelines and that this authority vested with the college administration. But it supported the college’s decision to ban hijab as it was not an essential part of religious practice.

The college too defended its order, asserting the uniform system was followed in the schools since 2004 and was never questioned till December last, when a handful of students made it an issue.

The controversy escalated further on the instigation of CFI student’s wing of PFI, the college alleged in its submission.

Both state and the college rejected the petitioners’ argument that the order violated their fundamental right to live with dignity, maintaining the hijab ban is only restricted to schools and not the entire state.

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