KARNATAKA HIJAB BAN CASE: SUPREME COURT DELIVERS SPLIT VERDICT BY - SHIVAM SAURABH
KARNATAKA HIJAB BAN CASE: SUPREME
COURT DELIVERS SPLIT VERDICT
AUTHORED BY - SHIVAM SAURABH
8271204044
CHANAKYA NATIONAL LAW
UNIVERSITY
INTRODUCTION
At the beginning of February 2022,
six female Muslim students were being restricted from entering in their college
in the Indian state of Karnataka, because of the attire that is 'hijab' or
'veil'. They said that it was a violation of the college uniform policy which
was observed by the students of the other religions as well. hijab or veil means that it is a cloth worn
by Muslim women to hide their heads and there can be some other reasons also to
why Muslim women opt to carry an attire as an identity of their religion, some
have been believed while others have been neglected. As we saw, there was huge
chaos in other universities. It was spreading to the different schools and
universities across the state and groups of Hindu students staged rallies in reversal
and start calling for the wearing of saffron scarves.
After looking at the present
scenario, petitions were filed in the Karnataka high court. the high court
ordered a temporary injunction prohibiting all the pupils from donning any kind
of religious attire.
And this order would be applicable in
all schools1 and colleges across Karnataka. the process of discussion still
going in the high court and the court ruled that the hijab is not a requirement
for practicing in Islam.[1]
ELEMENTS
·
UDUPI
DISPUTE
·
SAFFRON
PROTEST
·
GOVERNMENT
REACTION
Udupi dispute
This dispute was aroused at the
government PU college. When the college administration stopped Muslim women to
enter the classes because they wore veil. The college said that its uniform
policy did not allow for the hijab, they started arguing that hijab was part of
their faith and their constitutional right but the college refused to wear
hijab inside the classroom. They started approaching high court through
petition and also approached the national human rights commission.
Saffron dispute
Hindu students began showing up at
their campuses wearing saffron scarves as a form of protest against Muslim
students being permitted to wear hijabs as soon as the Udupi story became
known."If ladies are permitted to wear hijab, then other students would
come with saffron shawls to institutions”.
Government reaction
The Congress and the Bharatiya Janata
Party (BJP) began tossing insults at one another over the Karnataka hijab
incident. Congress accused the BJP of inciting students, but BJP officials said
that Congress was responsible for the hijab controversy.
The Government decided to form a
committee and this committee member would re-examine the issue after that we
concluded. Till the time you all have to maintain the decorum of the schools
and universities, and follows the rules and regulation as status quo(you have
to follow the rules that is mentioned by the college till the high court will
not come).[2]
Main reason behind the hijab
The main problem in the hijab case is
According to the court, the hijab is not a requirement for practicing Islam,
and as a result, it is not covered by Article 25 of the Constitution, which
establishes a person's basic right to profess their religion.The premise of the
hijab defense is that females may choose to wear it or not, which is a gravely
faulty notion. the rights of Muslim girls to wear their evil in schools or
colleges are primarily based on the Constitution's provision of Fundamental
Rights, which includes the right to free speech. But is the option to wear a
hijab one of free will?
Importance
and possible reasons of wearing Hijab
Muslim women wore the hijab as a sign
of submission to God's instruction in the Quran, where Allah (God) says:
“And instruct the believing women to
cover [some of] their chests with their headcovers so as not to reveal their
adornment, to reduce some of their eyesight, to preserve their private parts,
and to not display their adornment until it is necessarily visible”.[3]
Muslims women also wore the niqab (a
face evil), the niqab covers whole face excluding her eyes, Could they forced
her to wear the hijab or was it mandatory to wear hijab? No, it was not
compulsory but they just wore because to show the respect to GOD (prophet). At
last, hijab should be a priority when it comes to access to education, travel,
and relationships, but it has taken on a patriarchal form, supposed to lead to
the dogmatism that consequences. Some families will indeed give their girls the
minimal amount of education if they wear the hijab, which exemplifies their
commitment to Islam.
The hijab controversy and what it means for women's education
Hijab no more: a Phenomenological study
This article mainly focused on the
hijab issue and how this has been spreading for a quite number of days. The
writer tries to focus more on women's empowerment and education. He discussed
many provisions like articles 25 and 26. This article put more emphasis on the
western countries' culture for the Muslim and also adopts a phenomenological
logical research design. The writer tries to focus on the present and past
scenarios of Muslim women, how this matter played an important role for
politicians and also tries to create a huge gap between secular and religious
values.
Is Wearing the Hijab Protected
by the Right to Freedom of Conscience?
With the reference of case Bijoe Emmanuel v State of Kerala, 1986,[4] she argued that
wearing hijab is a part of their upright
belief and ban on the hijab violated their fundamental right under article 25.
Bascially judgement read like:- The Court determined between
"Freedom of Conscience" and "Religious Expression" in the
conclusion, emphasizing that although the conscience is an internal beliefs, religious
demonstration is an outward expression of this belief. The Essential Religious
Practices requirements ought to be applied to hijab wearing given that it is a
form of religious expression.
Is the Hijab an Obligatory
Religious Observance in Islam?
The high court upheld that
wearing the hijab is not an essential religious practice. Muslims girls
continuously arguing with the help of article 25, some Muslim scriptures and
said wearing hijab is their an essential practice. So, the court cannot impose
any restriction on this.
The hijab is not a religious practice, as stated by the court.
Nevertheless, it is a cultural convention. The hijab evolved as a measure to
ensure women's safety and had a connection to the societal environment in which
the Quran was written. It cannot be recognized as the religion's bedrock tenet.
Does the barring of the hijab
in institutions violate students' expectations of privacy and freedom of
expression?
The court endorse that under
article 19(1)(a) of the constitution, right to freedom of speech and
expression no where mentioned that put
restriction on wearing hijab is the violation of fundamental right.
Every institutions that is run
by the state government, they have some dress code and that dress code
represents the principles of secularism (there will be no discrimination). The
court put some reasonable restrictions to maintain the decorum of the
institution. [5]
Supreme court delivers split
verdict
The petitions asking an urgent
hearing of the case been dismissed by that of the Supreme Court of India. In
necessary for the girls to register in the state exams and prolong the progress
established the previous year, experts asked the judge to review their case as
early as possible. N. V. Ramana, the Chief Justice of India, denied these
request,indicating that the assessments had nothing to do with the circumstance
and that it must not be provocative.
This case refer to two judge
bench under the justice Hemant Gupta and the justice Sudhanshu Dhulia and a panel returned a split verdict
on this issue.
Chief Justice Ritu Raj Awasthi
presided over the Karnataka High Court in March and held The Muslim holy book,
the Quran, does not require women to wear the headscarf. At most, the hijab
serves as a way to enter public spaces and a "measure of social
security." The Muslim Community later appealed the court's decision to
support the ban to the Supreme Court.
On today's Karnataka High Court
hijab ban judge's decision, two Supreme Court judges had varying viewpoints.
The judges rendered a mixed opinion as to whether or not the hijab should
retain in schools and recommended aa bigger bench to put it on. In their split
decision, Justice Hemant Gupta and Justice Sudhanshu Dhulia recognised "a
division of judgement" and urged Chief Justice of India U.U. Lalit to
appoint a three-judge court to hear the case.
Justice Hemant gupta dismissed
all the appeals and said that ban on hijab is not the prohibition of their
fundamental right and the state government can enforce the dress code ad
mandate. Put more emphasis on the principles of secularism that shows the
togetherness and also promotes that there will be division between any students
in the institutions, students are free to practice any type of their religious
sentiment but outside the schools.[6]
Justice Sudhanshu dhulia is
totally reverse the gupta judgement and said that wearing hijab should be
simply a matter of choice and there cannot be any restriction against it. The education of a girl infant
was really the matter that bothered Justice Dhulia the most, and the hijab
banning would undoubtedly prevent her from living a better life, he said.
According to Justice Dhulia, it was not essential to consider on
this subject in order to sort out the controversy whether or not wearing the
hijab represented an important Islamic religious practise. He stated:
"There can be no valid justifications for forbidding hijab in a classroom
if the belief is legitimate and it doesn't hurt anybody else."[7]
He believed that the young girl petitioners had pleaded for their own
liberties, instead of the society. Given that there will always be different
religious viewpoints on a certain religious issue, courts are not the
appropriate places to resolve theological disputes, he claimed. Nothing permits
the court to favour one party over another, thus it must refrain from
interfering when constitutional constraints and bounds are crossed. He also
talked about the what is more important dress code or education? He added that
the court have to ask this question that the life of girls is important and
give them better education not to wear hijab is important.the Karnataka high
court fails to answer these question like the question of diversity, how a girl wearing a hijab in a school may be a concern for law
and order or even for public safety. The importance of variety and a
thriving, diversified culture was underscored by Justice Dhulia in the context
of this particular case. He highlighted the Karnataka
Education Act of 1983, which stipulated that the diverse and rich national
culture be emphasised in school and college courses. The concepts of human
dignity and brotherhood.
On the other hand, while
Justice Gupta agreed with the Karnataka High Court that the hijab was not a
necessary religious practise. He said that the court might have done so by
first determining whether the government's restriction was legitimate or if it
was "struck" by the proportionality concept. According to Article 21, the
pupils had a right to an education, but they were not allowed to insist on
wearing something differently from their uniform as a sign of their faith in a
school that was not religious. The uniform is an equaliser of
inequities, as Justice Gupta acknowledged. Many might adopt a certain dress
code if students of one faith insisted on it. Secularism would be challenged if
one religion was allowed to wear religious symbols. The option of whether or
not to exercise the right to an education would still be up to the student. He
said that the headscarf did not fall under the scope of Article (19)(a)freedom
of speech. The rules helped to promote equality.at the end justice Hemant gupta
focused on Students must adhere to the rule that the school uniform must be worn
without any "addition, subtraction, or adjustment."
Present situation
The Karnataka government
briefed the SC during the hearing that the incidents that occurred in the state
prior to some college development committees prohibiting the hijab in their respective
educational institutions were not "spontaneous" but rather "part
of a larger conspiracy," pointing out that "women are revolting"
against the hijab even in constitutionally Islamic nations like Iran.
[1] The Supreme Court’s split verdict puts
the education of young Muslim women in jeopardy., available at: https://frontline.thehindu.com/news/understanding-the-split-verdict-on-hijab-ban/article66014782.ece#:~:text=This%20was%20upheld%20by%20the,permissible%20and%20a%20reasonable%20restriction.,(last visited on
December 12, 2022).
[3] SURAH AN-NUR AYAT 31 (24:31 QURAN) WITH TAFSIR., AVAILABLE AT: https://myislam.org/surah-nur/ayat-31/ , (LAST VISITED ON DECEMBER 24,2022).
[5] why wearing of Hijab is not a part of essential religious
practice in Islam: Karnataka High Court unfolds.,https://www.scconline.com/blog/post/2022/03/16/16-pointer-report-on-why-wearing-of-hijab-is-not-a-part-of-essential-religious-practice-in-islam/, (last visited on January 3, 2023).
[7] Supreme
Court Passes Split Verdict In Hijab Case; Justice Sudhanshu Dhulia Sets Aside
Karnataka HC Judgment., https://www.livelaw.in/top-stories/hijab-ban-supreme-court-split-verdict-karnataka-religion-fundamental-right-article-25-211510, (last visited on January 5,2023)