Hijab Ban : How Can Girls Going To School Wearing Head Scarf Be Public Order Issue? Petitioners Argue In Karnataka High Court

At the outset, the Advocate General submitted that a substantial question of law is involved in this petition as to whether there is a right to wear hijab in educational institution under Article 25 of the Constitution.

He submitted that no impression should be given that the State was not showing generosity. "We have not intervened in this matter. Autonomy is given to colleges to decide about uniforms. I am only here to address on the larger questions of law," he clarified.

The AG continued, "College Committees decide the uniform. If any student wants relaxation, let them approach the Committees. Lot of sisters and daughters to the community are already in two minds."

However, Kamat pointed out that the stand of the State is not as innocuous as this, since they have issued a Government Order dated February 5, stating that restriction imposed on wearing hijab is an educational institution does not violate Article 25.

"We are not talking of burqa or entire veil. It is head scarf. The first submission is that the wearing of the hijab is an essential religious practice of Islam," Kamat submitted.

Wearing hijab is essential religious practice: Kamat

Kamat referred to Verse 24.31 and verse 24.33 of the Holy Quran, which purportedly talk about head scarf or veil over head as essential religious practise.

Reliance was also placed on a Kerala High Court judgment in 2016, which declared hijab as essential religious practice of Islam and allowed two Muslim girl students to wear it while appearing for the CBSE All-India Pre-Medical Entrance Test (AIPMT). "In a nation like India that has diverse religions, it cannot be insisted that a particular dress code mandated by a religion should be avoided so as to sit for the examinations," the Court had observed therein.

At this juncture, the bench inquired whether all Quranic injunctions are essential religious practices.

Kamat contended that it is not for the State to sit in judgment saying this is not an essential practice.

However, the bench opined, "Constitutional Law allows constitutional authorities to function as per the constitution. The state can make orders, but might be based on assumptive conclusions. Of course, citizen can challenge. We have not adopted doctrine of separation of powers strictly."

During the course of hearing, Kamat submitted that one's personal opinions, in this case, are irrelevant, as it is the belief of a community which is relevant and one cannot sit in judgement through a secular lens(Ratilal Panachand Gandhi v. State Of Bombay).

No public order issue involved: Kamat

He further contended that the right to wear a dress is a facet of the fundamental right to speech and expression under Article 19(1)(a) and the threshold of "public order" is extremely high to restrict this right.

"The grounds on which the impugned order has been structured are not relatable to those permitted under Article 19 (2). This violates even Article 21 as the Supreme Court has said under Puttasawamy judgement that right to wear falls within privacy right."

Kamat added that the State has no competence to issue the GO on dress code as per the Karnataka Education Rules and is thus, beyond the jurisdiction of the state.

"A girl going to school wearing head scarf, how can it be a public order issue...We are not trying to incite anybody or create disturbance. Right from admission we have been quietly practising our faith. Now to give a colour of public order this is an attempt to put the cart before the horse. Every practise of religion if the state wants can give the colour of public order," Kamat said.

He added, "When I joined the college, there was no public order issue. All these years, there was no public order issue. If it is a public order issue, how is it that when Muslim women wear hijab outside, it is not a public order issue and it becomes a public order issue when they enter college? When they go to market, not issue but in college there is a public order issue!"

The bench then questioned if there is a uniform test for public order? It illustrated,

"If I carry a baby of a swine and go to Connaught Place, nobody will create an issue except saying this man has gone crazy. But if I go like that to a mosque or a temple or a church, it might create an issue."

Kamat then clarified that it is not their case there is a straightjacket formula. However, the State has to justify with material on record that restriction which has been placed is justifiable on the issue of public order. "Power of state should be exercised in a manner that people are able to exercise their fundamental rights."

He further argued that brahmins wear a naman and go to school. Similarly, Sikhs wear a turban. But can the school say that it affects public order?

The Bench observed that in the case of Sikhs, Guru Grant Sahib prescribes five essential 'K's and the Courts have held that they are essential religious practices.

Discriminating against hijab-wearing Muslim women amounts to religious apartheid: Kamat

Kamat informed the Bench that yesterday, the hijab wearing Muslim girls were allowed to enter the school premises. However, they were made to sit in a separate hall. This, he argued offends Article 14 of the Constitution. Reliance was placed on the US Supreme Court judgment Brown v. Board of Education, which invalidated the doctrine of"separate but equals".

"It is my submission that such segregation offends Article 14...Making hijab wearing students to sit separately is a form of "religious apartheid" and untouchability is not fully abolished."

The Advocate General, denying the allegations of segregation, took strong objection to Kamat's submission. He argued that such baseless allegations should not be made since they have danger potential in a sensitive society like ours.

However, Kamat retorted saying freedom of speech cannot be suppressed inside Court.

Reference to the Holy Quran

Kamat cited following excerpts from the Holy Quran (as mentioned in the Kerala High Court judgment) in support of his case.

Hadith no. 4092 kitab al libas (book of clothing Sunan Abu Dawud): "O Asma! It is not correct for a woman to show her parts other than her hands and face to strangers after she begins to have menstruation."

In 'the Islamic digest of Aqeedah and Fiqh' by Mahmoud Rida Murad 'Khumur' is mentioned as follows: "Khumur, or head cover, is the cloth which covers all of the hair on the head, while the work, 'juyoob' (pl. of jaib) means not only the bosom, as commonly thought, but it includes the neck too."

In the Chapter 33 known as 'The Clans" in verse 59 of the Holy Quran, the command is as follows: "O Prophet, tell your wives and your daughters and the women of the believers to lower over them a portion of their jilbabs. That is more suitable that they will be known and not be harmed. And even Allah Forgiving and Merciful."

Kamat further referred to a Hadith (mentioned in the judgment) which prescribes a punishment for not covering head and not wearing long dress. 

He submitted that Kerala High Court had finally concluded that it is a 'farz' to cover the head and wear the long sleeved dress except face part, and that exposing the body otherwise is 'haram' (forbidden). It was also held there are possibilities of different views and opinions but that by alone is not a ground to deny the freedom, if the propositions have some foundation in faith.

Present case is different from High Court precedents relied upon in GO: Kamat

Another Kerala High Court judgment Fathima Thasneem v. State of Kerala, refusing to direct a private school to allow Muslim students to wear head scarves, was also brought to the attention of the Court.

However, Kamat argued that this judgment was in a different context; pertaining to a private school run by Christian management. He argued that this case involved competing rights of two entities, one the students and the other the minority institution. Hence, the rights that availed to individuals under Article 25 were treated as subservient to rights under Articles 29 and 30. That being so, the impugned order could not have drawn premise from this decision.

"The contours of fundamental rights in a minority institution are different from those in a government institution...Article 30 gives minority institutions certain rights. Article 30 has been given a very high pedestal and prevailed over Article 25 right of a student," Kamat submitted.

Similarly, he submitted that the Bombay High Court judgment in Fatheema Hussain Sayed v. Bharat Education Society is also not applicable to the instant case as that was in the context of an exclusively girls school and the Court held that it was not mandatory for a Muslim girl to cover her head while studying in an all-girls school.

He submitted that these decisions were cited in the Government Order to hold that restriction on hijab will not offend Article 25. However, such a proposition does not flow from any of these decisions, he argued.

Madras High Court held headscarf is an essential part of Islam: Kamat

Kamat then took the bench through a judgment of the Madras High Court in M. Ajmal Khan v. Election Commission of India, where the question before the Court was whether Muslim women clad in purdahs/ burqas could be photographed for electoral roll. It was held therein that headscarf is an essential part of the religion.

"It is, thus, seen from the reported material that there is almost unanimity amongst Muslim scholars that purdah is not essential but covering of head by scarf is obligatory," the Madras High Court had held.

India follows positive secularism; Displaying religious identity is permitted: Kamat 

Kamat submitted that some foreign jurisdictions follow the concept of "negative secularism" which does not permit the display of religious identity in public. However, in India "positive secularism" is followed.

"We follow the path of "positive secularism" where the State creates an environment where we respect practice of all religions...In schools, somebody wears a nama, somebody a hijab, somebody a cross, that is a reflection of positive secularism," he submitted.

Questions of Law

The Bench recorded the following propositions of law argued by Kamat :

-Whether wearing of Headscarf (hijab) is part of essential religious practise, as prescribed by the Holy Quran and therefore the State cannot direct against Quranic injunctions?

-Whether wearing of hijab partakes the character of right to expression under Article 19(1)(a) and the restriction can be levied only under Article 19(2) as held by the Supreme Court?

-Whether "right to wear" falls within the right to privacy as recognized by the Supreme Court in Puttaswamy judgment, and therefore the impugned order not taking cognisance of this is not right?

Initially, the Bench had asked the State if it can permit entry to the Muslim girl students, wearing hijab, during the 2 months remaining in the current academic year, until the State takes a policy decision.

This was after Kamat urged that the state should show some generosity and let the students wear the hard scarf of the same colour of their uniform till the exams are over. Advocate Mohammed Tahir, appearing for the Petitioner, had also submitted that only two months are remaining for the academic year to end and urged that permission may be granted for entering the school during this period.

However, as the Advocate General representing State expressed disinclination to interfere with the decision of the concerned College Committee, the Bench proceeded to hear the matter on merits.

It was the stand of the college that petitioners and other similar placed students have violated the dress code of the college by merely wearing a hijab.

It is the case of the petitioner that the right of women to have the choice of dress based on religious injunctions is a fundamental right protected under Article 25 (1), when such prescription of dress is an essential part of the religion. The plea refers to verses from the Holy Quran and states that taking away the practice of wearing the hijab from women who profess the Islamic faith, results in a fundamental change in the character of Islamic religion.