The long-awaited reserved judgement of the Karnataka High Court on ‘Hijab ban’ case was delivered on March 15. The full bench High Court has found that the right of the institution to enforce their rules on wearing of uniform by the students will prevail.
That will mean that the students will have to wear uniforms as prescribed by the schools or educational institutions. And Muslim girls who choose to wear hijab will have to take it off before entering the classrooms.
The case went to High Court when four Muslim girls challenged their institution’s right to enforce rules for their prescribed uniform for the school which did not allow wearing of hijab.
The school’s rules were not only explained to the students (and their parents) at the time of admission but they had also consented to accepting the school’s rules and policies in writing by signing consent forms.
As reported in the media, the issue escalated when Muslim girls claimed that wearing of hijab was part of their identity and an essential religious practice they wanted to observe and adhere to.
The issue, in light of the impending (at the time) elections in five states in India including UP and Punjab, took a confrontational turn and the matter reached the state of Karnataka High Court on February 4, only days before the polling was to start in state elections.
Their application to the from the Karnataka High Court was to seek an order to allow them to wear hijab in college, stating that it is their “Fundamental Right” granted under Article 14 and 25 of the Indian Constitution and “integral practise of Islam”.
The court fixed February 8 to hear the matter and issued an interim order to uphold the Government Order (GO) which was to enforce the college’s rule of not allowing hijab.
After 11 days of hearing, on 25 February, the Court reserved its decision to allow time for the judges – Chief Justice Ritu Raj Awasthi, Ms. Justice J. M. Khazi and Justice Krishna S. Dixit to consider all the arguments made in the case.
Delivering the 129 pages long judgement on 15 March and refusing the order sought, the judges explained the framework of their judgement. Based on the petitioners’ case they formed four questions to be answered:
- Whether wearing hijab is an essential religious practice (ERP) in Islamic faith protected under Article 25
- Whether prescription of school uniform is violative of rights.
- Whether GO violates Articles 14 and 15
- Whether any case is made out for issuance of disciplinary inquiry against college authorities.
But the fundamental question was questions 1 – whether the wearing of hijab was ERP and if the Court’s answer to it was in the negative, the petitioners’ case would become untenable.
In their own argument – to be allowed to wear hijab along with the uniform, the petitioners had in fact recognized and accepted the rights of the schools to make rules for prescribing uniforms.
Understandably, substantial portion of the petitioners arguments time was devoted to somehow establish that wearing of hijab was an essential religious practice for Muslim women.
It is obvious from the judgement an in-depth analysis of religious prescriptions in Quran was undertaken during trial.
The court found that the word hijab is not even used in Quran and opined that some commentators may have used it.
Also read: Hijab protests – from Karnataka to Melbourne
Then the court quoted an eminent Indian jurist Abdullah Yusuf Ali who has done extensive work and provided authoritative commentary on Islam and its religious practices. An excerpt from the judgement quoting Abdullah Yusuf Ali:
Indian jurist Abdullah Yusuf Ali referring to sūra (xxxiii), verse 59, at footnote 3765 in his book states: “Jilbāb, plural Jalābib: an outer garment; a long gown covering the whole body, or a cloak covering the neck as bosom.”.
In the footnote 3760 to Verse 53, he states: “…In the wording, note that for Muslim women generally, no screen or hijab (Purdah) is mentioned, but only a veil to cover the bosom, and modesty in dress. The screen was a special feature of honor for the Prophet’s household, introduced about five or six years before his death…”
Added, in footnote 3767 to verse 59 of the same sura, he opines: “This rule was
not absolute: if for any reason it could not be observed, ‘God is Oft. Returning, Most Merciful.’…” Thus, there is sufficient intrinsic material within the scripture itself to support the view that wearing hijab has been only recommendatory, if at all it is.
Thus, the court concluded that 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.
Answering all others questions (as above) the court held that prescription of school uniform by the State is a reasonable restriction the students’ rights under Article 25 and the Government Order issued by the Karnataka government is not violative of their rights.
No disciplinary action would be advocated against college authorities.
Multiple appeals have been filed in the Supreme Court of India against the order. No date has yet been fixed for the hearing.
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