15 March 2022 8:07 AM GMT
The Karnataka High Court on Tuesday, while upholding the ban on wearing hijab in government colleges, observed that prescription of a uniform for all students will promote a sense of "constitutional secularism" within the institution."The school regulations prescribing dress code for all the students as one homogenous class, serve constitutional secularism", the Court observed.A...
The Karnataka High Court on Tuesday, while upholding the ban on wearing hijab in government colleges, observed that prescription of a uniform for all students will promote a sense of "constitutional secularism" within the institution.
"The school regulations prescribing dress code for all the students as one homogenous class, serve constitutional secularism", the Court observed.
A Full Bench of the High Court comprising Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi today held 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.
It also held that prescription of school uniform by the State is a reasonable restriction on the students' rights to wear a dress of their choice under Article 19(1)(a) and thus, the Government Order issued by the Karnataka government dated February 5 is not violative of their rights.
Schools are qualified public spaces
"It hardly needs to be stated that schools are 'qualified public places' that are structured predominantly for imparting educational instructions to the students. Such 'qualified spaces' by their very nature repel the assertion of individual rights to the detriment of their general discipline & decorum. Even the substantive rights themselves metamorphise into a kind of derivative rights in such places", the Court observed.
"It is too farfetched to argue that the school dress code militates against the fundamental freedoms guaranteed under Articles, 14, 15, 19, 21 & 25 of the Constitution and therefore, the same should be outlawed by the stroke of a pen", the Court held.
No "reasonable accommodation" can be given for hijab; allowing it can lead to "social-separatedness" and offends the feel of uniformity
The Petitioners had relied on the 'principle of reasonable accommodation' to contend that they should be permitted to wear hijab of structure and colour that suit to the prescribed dress code.
Rejecting this argument, the Court observed,
"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 & faith".
"The statutory scheme militates against sectarianism of every kind. Therefore, the accommodation which the petitioners seek cannot be said to be reasonable. The object of prescribing uniform will be defeated if there is non-uniformity in the matter of uniforms."
In fact, the Court went on to hold that prescription of school dress code to the exclusion of hijab, bhagwa, or any other apparel symbolic of religion can be a step forward in the direction of emancipation of women, and more particularly, to the access to education.
"There is a lot of scope for the argument that insistence on wearing of purdah, veil, or headgear in any community may hinder the process of emancipation of woman in general and Muslim woman in particular. That militates against our constitutional spirit of 'equal opportunity' of 'public participation' and 'positive secularism'... It hardly needs to be stated that this does not rob off the autonomy of women or their right to education inasmuch as they can wear any apparel of their choice outside the classroom."
The Petitioners had also drawn the Court's attention to the prevalent practice of dress codes/ uniforms in Kendriya Vidyalayas, that permit wearing of Hijab.
Refusing to take cue from this example, the Court said,
"What the Kendriya Vidyalayas prescribe as uniform/dress code is left to the policy of the Central Government. Ours being a kind of Federal Structure, the Federal Units, namely the States need not toe the line of Center."
Object of uniforms will be defeated if there is no uniformity
The Court further held that the "object of prescribing uniform will be defeated if there is non-uniformity in the matter of uniforms".
It continued :
"Youth is an impressionable period when identity and opinion begin to crystallize. 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. Adherence to dress code is a mandatory for students".
The Court further rejected the reliance placed by the Petitioners on a judgment of the Constitutional Court of South Africa, in KwaZulu-Natal and Others v Pillay, which upheld the right of a Hindu girl from South India to wear a nose ring to school.
"Constitutional schemes and socio-political ideologies vary from one country to another, regardless of textual similarities. A Constitution of a country being the Fundamental Law, is shaped by several streams of forces such as history, religion, culture, way of life, values and a host of such other factors. In a given fact matrix, how a foreign jurisdiction treats the case cannot be the sole model readily availing for adoption in our system which ordinarily treats foreign law & foreign judgments as matters of facts."
"The said case involved a nose stud, which is ocularly insignificantly, apparently being as small as can be. By no stretch of imagination, that would not in any way affect the uniformity which the dress code intends to bring in the class room."
The Court answered the issue relating to uniforms as follows :
"In view of the above, we are of the considered opinion that the prescription of school uniform is only a reasonable restriction constitutionally permissible which the students cannot object to".
Find links to detailed arguments made by both parties here.
Case Title: Resham v. State of Karnataka and Others with connected cases
Citation: 2022 LiveLaw (Kar) 75
Click here to read/download the judgment