Hijab Case - Allowing Religious Symbols In Educational Institutions Against Secularism : Colleges & Teachers Tell Karnataka HC

Mustafa Plumber

23 Feb 2022 1:19 PM GMT

  • Hijab Case - Allowing Religious Symbols In Educational Institutions Against Secularism : Colleges & Teachers Tell Karnataka HC

    A Full Bench of the Karnataka High Court today continued hearing the Respondents in the petitions filed by Muslim girl students, challenging the action of a government college in denying their entry for wearing a hijab (headscarf). Today is the 9th day of the hearing before the Full Bench.Senior Advocate S. Naganand, appearing for govt PU college, its principal and lecturers today told the...

    A Full Bench of the Karnataka High Court today continued hearing the Respondents in the petitions filed by Muslim girl students, challenging the action of a government college in denying their entry for wearing a hijab (headscarf). Today is the 9th day of the hearing before the Full Bench.

    Senior Advocate S. Naganand, appearing for govt PU college, its principal and lecturers today told the Bench comprising Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi that the petitioners had no objection in following the dress code until December 2021. He stated that the college has stipulated uniform since 2004, and it was only now, allegedly at the behest of a radical group that the students are "drum beating" the issue of hijab.

    "This is a simple issue, let children come to school and don't wear the external symbols of religion. Now a right-wing association of Hindus wants to wear saffron shawls. Tomorrow, Muslim boys will want to wear skull cap. Where is this going to end?" he said.

    The Bench also heard Senior Advocate Sajan Poovayya for the College Development Committee and Advocate Raghavendra Srivatsa.

    Further, the Court has asked the intervenors to submit their written submissions in the matter.

    "We do not need assistance, but since so many intervenors have come, we will reqeust to give written submissions. We cannot hear this matter for six months," it said.

    Further, making a clarification on its interim order restraining students from wearing any sort of religious clothes in classrooms, the Court said,

    "Our order is clear, it only applies to institutions with uniform. If uniform is prescribed it has to be followed by degree or PU College."

    This was after an application was filed stating that colleges where no uniform is prescribed are also taking coercive action.

    Hearing will continue tomorrow, at 2.30 pm.

    Wearing Hijab not Essential Religious Practice: Naganand

    Yesterday, Naganand had argued that wearing of headscarf is not an Essential Religious Practice but is a cultural practice. In the same vein, he today presented before the Court the copy of petitioner's Aadhaar card, wherein her photo is without hijab.

    He then stated that during Shah's rule, there was no purdah system in Tehran, even though it was a Muslim state.

    "I remember in colleges students from Tehran would come in Bangalore. We used to see hordes living here. At that time, purdah etc. was not needed."

    Radical mobilization of students: Naganad

    He then alleged that the so-called student protests are being organized by the 'Campus Front of India', purportedly a radical organization, following denial of its request by the authorities for wearing of hijab.

    "After refusing, students behaved rashly. CFI has been coordinating the protests. It is some kind of voluntary organization which is spearheading drum beating of hijab. It is supposed to be a students' association, but it is not union recognized etc. It is an organization which comes and creates commotion."

    At this juncture, the Bench asked the Advocate General if the government has any intelligence inputs about this organization. The AG undertook to place the same before the Court in a sealed cover.

    Naganand then informed the Court that some teachers were also threatened by CFI and a complaint in this regard was lodged yesterday by one of the teachers.

    "When was the complaint lodged? State should have disclosed it to us," Justice Dixit said.

    The AG responded that he was unaware of these developments.

    False allegations against PU College: Naganad

    Naganad, appearing on behalf of govt PU college, its principal and lecturers, continued that false allegation have been levelled by the petitioners regarding classroom discrimination.

    "They (petitioners) say teachers were scolding etc. These are serious allegation; the petitioners have not substantiated it. They say the threat was to mark them absent. Yes, if they don't attend classes, they will be marked absent. What threat?

    Not rewarding them internal marks? To which student it was done? Only bald allegations. They have also introduced a false allegation that since September 2021, petitioners faced discrimination, in their classes. I have denied it.

    The two representations given by students, which I have annexed, do not contain these allegations. In September if something is done, will a student go home silently, and make a complaint after three months and file a petition six months later?"

    Uniform compulsory since 2004-05: Naganand

    Naganand contended that the Govt PU college has a prescribed uniform since 2004 and it has been consistently the same since then. However, that was not a problem until now.

    "Violation of Article 25 is debated. Govt has not prescribed, it has said institution take decision. In our case institution has taken decision (for uniforms) since 2004."

    Uniform introduced to maintain public order: Naganand

    Naganand contended that the Freedom of Conscience was incorporated in the Indian Constitution as its makers wanted every individual to have his own freedom of thought process. "Conscience is that voice which we hear from the recesses of our heart," he said.

    However, in an education institution, he contended, the democratic body has taken a decision that uniform dress should be worn for maintaining good relation, public order.

    "When an attempt is made to maintain order, that is public order. Not necessarily that order comes from disorder. Uniform was to keep order…These are parental rights in the welfare of the child the authority exercised by teachers over students are also parental rights."

    Further stressing on the public order aspect, Naganand asked the Court to consider what will happen if people from other cultural backgrounds also start to insist on displaying the same within educational premises.

    For instance, he submitted that in orthodox Brahmin sections, after upanayanam, a boy is not supposed to wear shirts, only angavasathram.

    "So, if tomorrow a category of boys say that they want to come like this, what will happen? School has to maintain the discipline… In the present case school has done that it has said that it is in the interest of everybody that child will not wear hijab or head scarves. Authority of the school cannot be belittled. The school has to maintain discipline in classroom. Decision is taken bonafide, and it is not questioned for around 18 years."

    Article 25 Freedom not absolute: Naganand

    Naganand contended that no fundamental right is absolute. Article 25 starts with "subject to" public order, morality and health.

    Thus, he contended, "My right for peaceful existence cannot be threatened by somebody saying I want to exercise my religious rights. Supreme Court has said in many decisions."

    Reliance was placed on Church Of God (Full Gospel) v. K.K.R. Majestic Colony Welfare, where the Supreme Court was called to decide on the issue of use of loudspeakers in a church.

    "No religion prescribes or preaches that prayers are required to be performed through voice amplifiers or by beating of drums. In any case, if there is such practice, it should not adversely affect the rights of others including that of being not disturbed in their activities," it was held therein.

    Naganand further referred to the case of Masroor Ahmad & Anr. v. State of UP & Ors., where the Allahabad High Court had held that use of loudspeaker is not an integral part of azaan recital in Mosques.

    He also cited the judgment on allowing Sikh person to wear kirpan. "In Article 25(2), explanation is given allowing kirpan," Naganand added.

    He stated that in Bijeo Emannuel case, petitioners were exempted from singing the National Anthem because undisputedly, it was "essential" for Jehova's Witness to not sing in praise of anyone except Jehova.

    Adv Raghavendra Srivatsa makes submissions on applicability of foreign judgments

    The Chief Justice opined that Freedom of Religion differs from country to country and hence, it will consider the issue.

    Advocate Raghavendra Srivatsa then pointed that in India, Article 25(1) which protects freedom of religion, opens with a restrictive clause. Whereas, in America and Australia, the freedom is virtually unrestricted; there is an injunction against the State to not make laws on religious issues.

    "In the present education, we are dealing with secular education within public institutions, therefore different consideration may arise."

    He referred to European Court of Human Rights judgments that have upheld decisions of States in restricting hijab.

    Arguments on behalf of CDC

    Senior Advocate Sajan Poovayya, appearing for members of the College Development Committee submitted that the 2014 govt circular, constituting the CDC, has not been challenged by the Petitioners.

    "The CDC was constituted to provide welfare of the institution in tune with the local requirements. The Committees are not necessarily headed by MLAs of party in power…I (Rathupathi Bhat) am not there because I am an MLA but there to look after the local requirements."

    The Chief Justice inquired if the relief of quo-warranto can be granted. Poovayya responded in the negative.

    He Furter contended the right to wear a religious attire is amenable to Article 25 and not Article 19.

    Yesterday, the AG had also argued that petitioners' contention that wearing of hijab partakes the character of right to expression under Article 19(1)(a) of the Constitution is misplaced inasmuch as that argument is mutually destructive to argument of Article 25.

    "If their argument accepted, persons who do not want to wear hijab will have the right to not wear also. It would mean there is element of option. Claiming Article 19(1)(a) right is destructive to Article 25. Article 25 right is for compulsory practice. When you assert Article 19(1)(a), it means choice. Art 25 has an element of compulsion as far as dress is concerned. The consequences of a declaration of a court in ERP is that every member of the community is bound to abide," the AG had said.

    Education a secular activity: Poovayya

    Further, Poovayya pointed out that Article 39(f) was brought in by the 42nd Constitutional Amendment Act to amplify the word "secularism" in the constitution.

    "External manifestation of a religion, its professing and propagating is in forum external, which can be regulated under Article 25(2). Education in this country especially with the aid of government is purely a secular activity."

    He then referred to Article 28 of the Constitution which provides that no religious instruction shall be provided in any educational institution wholly maintained out of State funds.

    "If the State which maintains a college cannot impart any religious instruction there, can it be also read to mean there can be no religious manifestation in that institution? In other words, can a person getting public education insist he or she has to wear religious attire, even assuming they have established that it is an essential religious practice? Even if it is an essential religious practice, it has to yield in a public institution. A secular outlook is maintained in the precincts of the school."

    Next, Poovayya pointed out that out of 950 students in the school, 100 students belong to the Muslim faith. Out of these, till December, he claimed that none of the students insisted on wearing hijab. Now, only 5 of the 100 insist that they want to wear one.

    "Udupi district alone has 12 govt colleges, a child can choose to go to a school which does not stop wearing hijab. It is also duty of the school, most children are minors, when they are minor it is my duty to provide the best benchmark.

    Preamble of the Karnataka Education Act says that its objective is to form a secular outlook. It is my duty to ensure that the school is secular. It is a duty as a school to ensure that a minor girl is not shackled to a practice. The decision whether to wear a hijab is on them when they attain majority."

    Here, the Bench inquired if it is a girls' school or co-ed?

    Poovayya responded, "I am an all-girls' school. When they came to school, within the precincts of the school they wore only the uniforms. Till December they did not insist on wearing hijab."

    He continued,

    "Equality in education, it does not matter whether you are a Hindu or kodava, Christian or Muslim-Shia or Sunni. The dress is uniform. When I prescribe a uniform as an institution, religion is immaterial to me."

    Reliance was on the Sabarimala judgment, where Justice Nariman opined that peace and tranquility is public order. "To maintain cohesiveness in educational institution is tranquility. It is public order. Law and order is only a small subset of public order," Poovayya said.

    Permitting hijab in educational institution discriminatory: Poovayya

    He argued that if 5-8 out of 100 Muslim students in the school want to wear a headscarf and the same is permitted, the remaining 95 Muslim children will be led to say that they are irreligious. On this proposition, he relied on Leyla Şahin v. Turkey, a Turkish decision which upheld restriction on wearing hijab in a higher educational institution.

    "Allowing Islamic headscarf in educational institution will amount to discrimination between practicing Muslims, non-practicing Muslims and non-believers," it was held therein.

    In this backdrop, he submitted,

    "If institution allows religious symbols, then the students who do not wear them will be regarded as areligious within the community. Then where is cohesion? Where is public order?"

    Povayya stated that an individual may wear religious attire when they go to pray. However, when the same individual comes for a secular activity, he/ she cannot bring their religious manifestations to wear.

    "I cannot allow to wear a Hindu symbol and cannot allow a Muslim girl to wear hijab. If I allow this then where will it come to an end?"

    Test of Essential Religious Practice

    Poovayya urged the Court to consider if the religion will be altered if the practice is removed.

    Reiterating that 95% girls are not wearing hijab to school, Poovayya remarked,

    "Are they not practitioners of Islam? Is the essence of Islam lost by a lady not wearing hijab? Or take Hindu faith, if I don't apply tilak or wear saffron attire when I pray, is the essence of Hinduism lost. My conscience says I follow Hindu religion. The attire is just a manifestation."

    He referred to Justice Chandrachud's judgment in Sabarimala case to argue that the basic constitutional value as a school is to impart secular education and to protect dignity of a girl child.

    "Why is it that we teach our girl child to dress modestly and not boys? In a constitutional scheme, can we dress our girls differently in the name of modesty? Where is the question of modesty for a girl child coming from? Are girls less? Constitution does not say so. Maintaining secular order is paramount consideration of the state and also mine as an education institution. To remove the discrimination, you may be rich or poor, Hindu or Muslim, you must wear the same uniform."

    He added,

    "Even assuming hijab is Essential Religious Practice, no religions is allowed inside the school. To esnure that it runs secularly, I am obligated to ensure that no religious symbols enters my school campus. I have that right."

    Case so far

    The Advocate General previously argued: (i) wearing of hijab does not fall within the essential religious practise of Islam; (ii) right to wear hijab cannot be traced to freedom of expression under Article 19(1)(a) of the Constitution; (iii) Government Order dated February 5 empowering College Development Committees (CDCs) to prescribe uniform is in consonance with the Education Act.
    Yesterday, he argued that wearing hijab does not stand the test of constitutional morality and individual dignity, laid down by the Supreme Court in Young Lawyers Association v. State of Kerala (Sabarimala judgment).

    "If somebody is to come before lordships seeking a declaration, that we want every women of that faith to wear, would it not violate the right of the person, to whom we are sitting down and subjugating. According to me it is impermissible in this day and age...dignity of the women must be kept in mind," he said.

    Hijab Should Satisfy Tests Of Constitutional Morality & Individual Dignity As Held In Sabarimala Case : AG Tells Karnataka HC

    The Bench also heard Senior Advocate R Venkataramani, appearing on behalf of college teachers who are made respondents in a writ petition and Senior Advocate S. Naganand, appearing for govt PU college, its principal and lecturers.

    Venkataramani stated that the right to freedom of religion under Article 25 of the Constitution is subject to reasonable restrictions on the ground of public order, morality and health. It was further contended that if the State takes some measures for ensuring order and disciple, the Courts should not hold strict scrutiny.

    Naganand argued that wearing of headscarf is not Essential Religious Practice and was a cultural practice. He added that relaxations and deviations will be always there from religious injunctions in a pragmatic manner.

    Earlier, the Court had sought a clarification from the State regarding its stand on banning hijab. More details here:
    The State contended that petitioners have not shown hijab to be an essential practice. Nevertheless, it assured the Court that authorities will not act beyond the scope of the Court's interim order restraining students from wearing any sort of religious clothes in classrooms.

    'Govt Is Sensitive' : Advocate General Assures HC That Authorities Won't Act Beyond Interim Order In Hijab Case

    Senior Advocate Devadatt Kamat appearing for the petitioners argued that wearing Hijab is an essential religious practice under Islam, and suspension of the same, even for a few hours during school, undermines the community's faith and violates their fundamental rights under Article 19 and 25 of the Constitution.

    Kamat heavily relied 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.

    Opposing this, Venkataramani submitted that this judgment was not based on the dimension of public order and it was mostly a discussion on cultural right. "To borrow judgment of foreign jurisdiction and to apply here will be problematic. If wearing of hijab is important for someone, wearing of tilak on forehead could be important for someone else."
    Kamat had also also underscored that the declaration made by the State government that wearing of headscarf is not protected by Article 25 of the Constitution was "totally erroneous'. It was also submitted that the conduct of the State government in delegating to the College Development Committee (CDC) to decide whether to allow headscarfs or not is 'totally illegal'.
    Prof Ravivarma Kumar, Senior Advocate, appearing on behalf of the petitioners argued that the state is discriminating against Muslim girls, solely on the basis of their religion. He highlighted that the Government Order dated February 5 targets wearing of hijab whereas other religious symbols are not taken into account. This leads to hostile discrimination violating Article 15 of the Constitution.
    The Bench also heard Senior Advocate Yusuf Muchhala for the petitioners, who argued on the aspect of right to freedom of religion, contending that it is not necessary that a practice should be an 'essential religious practice' for attracting Article 25(1).

    "When the right is claimed under Article 25(1) and 19(1)(a) of the Constitution, what matters is the entertainment of a conscientious belief by individual. When right is claimed as a matter of conscience, it is not necessary to delve into the question whether it is an integral part of religion," he said.

    During the course of hearing, an oral request for mediation in the matter was made. Responding, the High Court had observed that mediation was possible only if both the petitioners and the respondents (State and College Development Committees) agree.
    The matter was first listed before a single bench of Justice Krishna S. Dixit, which referred the petitions to larger bench observing that "questions of seminal importance" are involved.

    The Full Bench, after hearing both sides passed an interim order restraining the students from wearing any sort of religious clothes in classrooms, regardless of their faith, till disposal of the matter.

    The Petitioners are students of Govt PU college. They claim that they were wearing head scarf, as part of their religious and cultural practice, over their uniform. However, the teachers and principal of the Respondent-college insisted that they remove their heads scarf.

    It is alleged that they are made to stand out of the class and this 'discrimination' is continuing since December 2021. They claim that a representation was made to the District Education Officer however, on January 1, the Principal called a meeting of the College Development Committee, which declared that petitioners should not wear headscarf. Following this, the petitioners were not allowed to attend classes and made to sit outside, which led to protests.
    An important question before the Court in this case is whether wearing of hijab is part of essential religious practise of Islam and whether State interference in such matters is warranted. The court is also called to consider whether wearing of hijab partakes the character of right to expression under Article 19(1)(a) of the Constitution and whether restriction can be levied only under Article 19(2).

    It is the petitioner's case that the right to wear hijab is an essential religious practice under Islam, and the State is not empowered to interfere with such rights under Article 14,19 and 25 of the Constitution.

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

    Meanwhile, the State has claimed that it's aim is not to interfere with the religious beliefs of any community but, is only concerned to maintain uniformity, discipline and public order in educational institutions.

    "The feeling of oneness, fraternity and brotherhood shall be promoted within an institution. In educational institutions, students should not be allowed to wear identifiable religious symbols or dress code catering to their religious beliefs and faith. Allowing this practice would lead to a student acquiring a distinctive, identifiable feature which is not conducive for the development of the child and academic environment," it submitted in a written reply.

    (Edited and compiled by Akshita Saxena)

    Live Updates of the hearing available here.

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