“CRITICAL ANALYSIS OF THE HIJAB JUDGEMENT 2022” (By- Aanchal Agarwal)
TITLE:
“CRITICAL ANALYSIS OF THE HIJAB JUDGEMENT 2022”
Authored By:
Aanchal Agarwal,
Manipal University Jaipur (MUJ)
Abstract
A school uniform dispute was
reported in the Indian state of Karnataka in early January 2022, when some
Muslim students of a junior college who wanted to wear hijab to classes were
denied entry on grounds it was a
violation of the college's uniform policy, dispute spread and groups of Hindu students staging
counter-protests by demanding to wear
saffron scarves Government issued an
order on February 5th stating that uniforms must be worn compulsorily
where policies exist and that no exceptions can be made for the
wearing of the hijab, petitions were filed in the
Karnataka High Court. Due to protests the government closed high schools and
colleges for three days. On February 10,
the High Court issued an interim order prohibiting all students from wearing religious attire.,
The court ruled that wearing a hijab is not a required religious practise. The
Karnataka High Court judges who
delivered the hijab verdict were given Y-category security.
Backdrop
Karnataka's
education system consists of ten years of school and two years of
pre-university college ("PU college"). Using powers granted under
Section 145(1) of the 'Karnataka Education Act, 1983,' the Government of
Karnataka empowered recognized educational institutions to decide on uniforms
for their students. [1]Uniforms are required for school
students by the state government, and schools can choose the colors. Uniforms
were not mandated by the government for PU colleges, but most college
development committees (CDCs)[a] adopted them over time, according to a PU
department official.
The department issued a directive to all PU
colleges in 2017 stating that PU students should not be required to wear
uniforms.College administrations that already had uniforms questioned the
policy, claiming that students and parents were satisfied with them. The
directive was still available on the PU Education Department website in
February 2022, but it did not appear to have been implemented. Muslims make up
13% of the Karnataka state's population. An increasing number of Muslim women
in the state are gaining access to public education.
According
to data, the Gross Attendance Ratio of Muslim women in higher education
increased from about 1% in 2007–08 to about 16% in 2017–18. Hijab is considered
by many Muslim women to be an essential part of the Islamic faith.In India,
public display of religious symbols, such as the wearing of a hijab or a burqa,
is common. According to PEW, in Karnataka, 71% of Muslim women and 42% of Hindu
women cover their heads outside the home (in India, 89 percent of Muslim women
and 59 percent of Hindu women cover their heads outside the home). Several Karnataka colleges reported that a
small number of Muslim students "always" wore the hijab in class. M
Raghunath, Karnataka's education minister during a Janata Party government in
the 1980s, stated that the government's uniform mandates permitted both the
hijab and the Christian nun's habit. He claimed that the Bhartiya Janata Party
did not object to the hijab at the time.[2][3]
According
to the BBC, protests over hijab have occurred in the coastal belt of Karnataka
in the past, but such issues were often quickly resolved.However, not all cases
were simple. Due to her insistence on wearing a hijab, a second-year PU student
at Moudaber was barred from attending classes for an entire year in
2011–12There have also been reports of Hindu students wearing saffron scarvesto
protest Muslim students wearing hijab or burqa in class. (4) The
Muslim women were said to be concerned that their parents would not allow them
to attend college unless they wore religious attire.
Over
the decades, the coastal districts of Dakshina Kannada and Udupi have seen
sectarian polarization with the rise of Hindu nationalism, represented by
organizations such as Bajrang Dal, Hindu JacarandaVedika, Vishva Hindu Parishad
(VHP), and Akhila Bhartiya Vidyarthi Parishad (ABVP), and a parallel
mobilization of the Muslim community by the Popular Front of India (PFI) and
its affiliates Campus Front of India. Karnataka has been governed by the Hindu
nationalist Bhartiya Janata Party since 2019. (BJP). It has implemented
popular Hindu nationalist policies such as the prohibition of cow slaughter and
enacting an "anti-conversion bill" that makes it illegal to convert
from one religion to another through deception, force, fraud, allurement, or
marriage.Because the bill forbids conversion for the purpose of marriage,
critics believe it will make itdifficult for interfaith couples to
marry or for individuals to convert to Christianity or Islam. .(5)(6)
The
Udupi Disputes
A
dispute over the wearing of the hijab was reported in early January 2022 at a
government-run Pre-University College for women in Udupi, which had prohibited
the wearing of the hijab as a violation of its uniform policy. Six Muslim
female students insisted on wearing hijab to class on top of their college
uniform, claiming that it absolutely was a part of their faith and a
constitutional right.According to the college's uniform policy, the hijab isn't
permitted. the women offered to hide their heads with the present uniform's
dupatta, arguing that they didn't must wear a separate hijab of a distinct
color or material, but the school refused. They were permitted to wear the
hijab on campus but weren't permitted to attend classes. They were discovered
sitting in corridors, functioning on their notebooks. (7)(8)Ansar Ahmed, the district
president of Karnataka Rakshana Vedika, a voluntary organization, brought the
case to the media's attention. the coed wing of the novel Islamic organization
alinement of India (PFI), Campus Front of India threatened a protest, prompting
the faculty to rearrange for a police presence.
The
Social Democratic Party of India (SDPI), the PFI's political wing, is
additionally said to possess threatened protests. the school administration met
with the fogeys and discussed their concerns, but they remained steadfast in
their refusal to permit religious attire. It is unclear what prompted the
students' change of heart on the hijab issue. They admit to attending the
primary year of faculty despite the college's no-hijab policy. They arrived on
campus wearing burqas and removed them in a very "ladies' room"
before attending classes.
One
amongst the scholars also stated that their parents were informed of this once
they enrolled in college in 2020. Others were skeptical. the matter was
resolved when the classes were moved online as a result of Covid. When classes
resumed on campus in September 2021, some students requested permission to wear
the hijab, which was denied on the grounds that everybody must wear a
"common uniform."Two of them took part in an anti-rape protest in
October 2021, and a photograph of the event was widely circulated. This brought
their situation to the eye of their parents and also the CFI. in keeping with
an investigation conducted by the Udupi Police, CFI approached the oldsters and
offered assistance in challenging the faculty administration. The agreement,
consistent with one in all the scholars, "mentioned a compulsory uniform
but said nothing a couple of hijabs."
As a
result, the six students and their parents decided to implement wearing hijab.
per the district's federated Muslim organization Muslim Okoda, PFI and its
affiliated organizations used the scholars "for their benefit." The
students' hijab protest seemed to be a ploy by the political wing (SDPI) to
broaden its base of support. a number of the protesting parents and relatives
are SDPI and other PFI affiliate members. The SDPI had just won six seats in
authorities’ elections, which was hailed as a significant victory. Muslim Okoda
claims that he attempted to resolve the dispute locally by speaking with
college officials, parents, and also the CFI, but the CFI chose to publicize
the problem by circulating photographs of scholars stranded outside of classes
provoking the faculty and BJP leaders to require a firmer stance. "Nobody
was within the mood for a compromise" by the top of December.
The
college development committee, which is guilty of developing uniform policies,
was led by K. Raghupati Bhat, an MLA from the ruling BJP. there have been no
Muslims among its 21 members. Following the escalation of the dispute, Bhat
held a gathering with all students' parents on 1 January and declared that the
school would maintain its uniform code, which doesn't permit hijab. The CFI and
SDPI argued that because uniforms weren't mandated by the govt, they may not
infringe on students' religious rights. Bhat contacted the state government's
Pre-University executive department to inquire about true. As a result, the
matter was escalated to the amount of the authorities.
Saffron
expresses its displeasure
Soon
after the Udupi incident became public, groups of Hindu students began arriving
at their colleges wearing saffron scarves to protest Muslim students being
permitted to wear hijabs. "If girls are allowed to wear hijab, other students
will include saffron shawls to institutions across Dakshina Kannada and Udupi
districts," a pacesetter of the Hindu JacarandaVedika, an affiliate of the
Sangh Parivar, declared.
When
some students wore saffron scarves and demanded that the code be enforced, a
co-educational first-grade college in Koppa tehsil, Chitmahal district, was the
primary to witness this development. In order to defuse the crisis, the school
asked Muslim students to get rid of their hijab at school. (9) some
days later, at a parent-teacher meeting, it had been decided to permit Muslim
girls to wear the hijab as long as they failed to pin it or tie it around their
heads. The Hindu students didn't trust their children's request to wear saffron
scarves. Hindu students at Pompei College in Mangalore wore saffron shawls to
protest the hijab on January 6, and were supported by Hindu nationalist
organizations ABVP, VHP, and Bajrang Dal. The saffron protests gained traction
in February, with demonstrations going down at the govt. PU College in Kondapur
(2 February), Bhandarkar’s' Arts & Science College within the same town (3
February), and Dr. BB Hegde College near Udupi (3 February). The saffron
protesters successfully prevented hijab-wearing Muslim students from entering
the school at the last location.
The
Government's Response
The
ministers in the Bhartiya Janata Party-led Karnataka government reacted angrily
to the incidents. B. C. Nagesh, the education minister, called it an "act
of indiscipline." According to him, students could not practice their
"religion" in public educational institutions. He stated that the
uniform had been present for over three decades and that there had been no
problems with it up until this point. He blamed "political leaders,"
presumably referring to the PFI, for inciting the students, who were allegedly
"playing politics." Home Minister Araga Narendra stated that
there must be a universal feeling in schools and colleges that "we are all
Indians," which necessitates compliance with the uniform code established
by colleges.
On
January 27, the government announced the formation of an expert committee to
investigate the matter. The government urged students to maintain the
"status quo" until its decision was made. The "status quo"
apparently meant "adherence to the uniform rule" for the Udupi PU
College students. The government issued a directive to that effect. Raghupati
Bhat, the chairman of the CDC,(10) convened a meeting with parents
and instructed them that their children should remove their hijabs in the
classroom.
On
either the 3rd or 4th of February, the government issued an order requiring all
uniforms mandated by the state government, school managements, or college
development committees to be worn. According to the order, students who adhere
to religious beliefs have a negative impact on "equality and unity"
in colleges. The preamble stated that a ban on hijab was not illegal, citing
three court orders from the High Courts of Kerala, Bombay, and Madras. In colleges where the college development committees
did not mandate a uniform, students must still wear clothing that promotes
"equality and unity while not interfering with public order." B. C.
Nagesh, the education minister, issued a statement declaring that "those
who want to defy the government's school uniform regulations cannot enter their
schools and attend classes.”
Fallout
The
effect of the government order was immediate. Even before the order was made
public, word of it had reached the coastal districts by 3 February and was
being implemented. Even colleges that had previously permitted hijab in classes
felt compelled to prohibit them. Many Hindu students forced the issue by
insisting that if the hijab was permitted in class, they should also be
permitted to wear saffron scarves.
On 3
February, 28 students wearing hijab were barred from entering the premises of
the Government PU College in Kondapur. Saffron scarves were apparently worn by
Hindu students the day before, and minister B. C. Nagesh informed the college
that students could only wear uniforms to classes and that neither hijab nor
saffron scarves would be permitted.
The
students were tense because their public exams were only two months away.40
students were barred from entering Bhandarkar’s' Arts & Science College, a
private college in Kondapur.The students referred to the college rulebook,
which stated that the hijab was permitted to be worn. [Some students described
their college's treatment as "humiliating."
The
college administration banned the hijab on 4 February, citing a government
order, after saffron protesters blocked hijab-wearing students the previous day
at Dr BB Hegde College. The students had apparently been wearing hijab to
school for three years without incident. On February 8, Mahatma Gandhi Memorial
College barred students wearing hijabs from entering, despite the fact that
multiple students said the college had previously not objected to her hijab.
Between
the 4th and 7th of February, there were counter-protests led by students who
were opposed to allowing hijab-wearing students to enter the college. Wearing
saffron shawls, these students marched to college. Authorities, however, barred
them from entering the premises and ordered the students to remove their
shawls. The students were only allowed in after they agreed to the request. On
February 7, some students at a college in Chitmahal wore blue shawls and
chanted Jai Bhim in support of Muslim girls wearing hijab (as opposed to the
saffron shawls that were against the wearing of hijab)
After
the controversy over Muslim students wearing hijab intensified, the Karnataka
government announced the closure of high schools and colleges for three days on
February 8th. Protests and agitations in the vicinity of educational
institutions were prohibited by the Bangalore Police from February 9 to
February 22. Two Muslim men were detained for allegedly carrying lethal weapons
during a protest near a college in the Udipi district. Three others, according
to police, were able to flee.
Muskan
Khan, a lone Muslim woman wearing a burqa, was heckled on her college grounds
in Mandy on February 10 by a crowd of male Hindu students wearing saffron
shawls and chanting "Jai Shri Ram." She yelled back, "Allahu
Akbar," as the college staff kept the crowd under control and escorted her
into the building.(10) The incident was captured on video and
quickly went viral. Many notable figures have condemned Muskan Khan's
treatment, including actors John Cusack, Pooja Bhatt, FakherAllamand footballer
Paul Pogba.
Petitions
To The Supreme Court
On
January 31, several students from Udupi PU college filed a writ petition in the
Karnataka High Court.The Campus Front of India claimed to have given them legal
advice. The petition also claimed that singled out the petitioner solely
because she wears a hijab violates "constitutional morality. “Senior
advocate Ravi Varma Kumar and other lawyers argued the petition.
A
second petition, filed around 4 February by a student from Kondapur (referred
to as "SMTP Rasham"), sought a directive allowing Muslim students to
wear hijab to classes. Devadatta Kamat, a senior advocate, represented
the petitioner. Two students from Bhandarkar's arts and science college in
Kondapur, who were represented by senior advocate Yusuf Machala, also filed a
petition. The hearings began on February 8th, presided over by Justice Krishna
S. Dixit. After hearing the preliminary arguments, the judge concluded that the
main issue was whether wearing a hijab is a necessary religious practice, and
if so, why should the state intervene in the matter. Given the case's
public importance, the judge decided that it should be heard by a "full
bench" (consisting of three judges). The following day, a full bench was
formed, consisting of Chief Justice Ritu Raj Awasthi, Justice Dixit, and
Justice Khazi Jawbones Mohiuddin.(11)(12) At
this point, there were said to be five petitions in front of the court,
representing 18 students. Hearings resumed on February 10th.On February 11, a
three-judge bench issued an interim order. It asked the state to reopen the
educational institutions and barred students from wearing religious attire in
class until the case was resolved in court. Following the order, a few members
of the Tamil Nadu Towhead Jamaat, a Muslim organization, threatened the judges,
citing the incidence of a Dhanbad judge who died in an accident. The defendants
were apprehended, and the judges were given Y category security.
Religious
Freedom
Senior
Advocate Devadatt Kamat, the students' lawyer, argued during the hearings on
14–15 February (Days 3 and 4), that the right of Muslim women to wear the hijab
is protected by Article 25(1) of the Indian Constitution, which guarantees
freedom of conscience and the right to practice one's religion. According to
Islamic scriptures, including the Quran, wearing the hijab is an
"essential religious practice." These rights are only limited by
concerns about public order, morality, and health. He contended that in order
for a practice to be considered a violation of public order, it must be "abhorrent
in and of itself" and cause "disturbance to society." Wearing a
hijab is neither of these things, and thus does not violate public order.When
the bench asked if every verse of the Quran should be considered an Essential
Religious Practice, Adv. Kamat responded that this isn't the case before the
court and thus should not be considered.
Senior
advocate Ravi Varma Kumar also claimed that by banning the hijab, the
government was targeting Muslim students specifically. According to Article
15(1) of the Indian constitution, this amounted to religious discrimination. He
argued that the goal of education should be to promote plurality rather than
uniformity, and that the classroom should reflect societal
diversity. ParachutingNavidi, the state's Advocate General (AG),
challenged the petitioners on 21–22 February (Days 8 and 9), claiming that
Article 25 protects only "essential religious practices." He claimed
that the petitioners had failed to demonstrate that wearing a hijab is a
necessary practice. Furthermore, by claiming that it was a necessary practice,
they were attempting to bind every Muslim woman to the dress code of hijab.
The
AG argued that an essential religious practice must be mandatory, citing the
Supreme Court's decision in the Ismail Farooqui case. Optional religious
practices do not fall under the purview of essential religious practices and
thus are not protected by the constitution. The AG claimed that the
petitioners' claims under Article 19(1) of the Indian constitution (right to
freedom of expression) and Article 25(1) are "mutually destructive"
(contradictory).The AG and other lawyers representing the state, CDC, MLA,
teachers, and others backed up these claims by stating that the right to free
expression is a 'forum Internum' right that applies to inner convictions and
inner thoughts, whereas the right to practice religion is a 'forum extremum'
right that applies to the outward expression/manifestation of one's faith or
practice.
Furthermore, they stated that these rights are
subject to reasonable limitations. During the Day 3 hearing, Devadatt Kamat
contested the Government Order of February 2022. He stated that the order
relied on three previous High Court decisions to support dress codes, but none
of them applied to the current case. Speaking on behalf of a Muslim student,
Senior Advocate Yusuf Machala stated that the Government Order was
"manifestly arbitrary." It was a violation of both Article 14 of the
Indian constitution and the principle of fairness because the Muslim students
were not allowed to be heard. Students were barred from wearing hijabs due to
objections from other students, which was clearly partisan.
The
state's Advocate General defended the Government Order, claiming that it was
only a "suggestion" and not a ban on hijab. Following opposition from
Muslim students at Udupi PU College, the college development committee referred
the matter to the state PU Department. The government formed a "high-level
committee" to investigate the matter and issued an order granting college
development committees the authority to prescribe uniforms. Because the order
did not require uniforms, it was deemed "innocuous." It neither
prescribed nor prohibited the wearing of the hijab. When asked by the Chief
Justice why the order mentioned hijab at all, the AG said it was just an
"indication" to the college authorities.
The
CJ went on to question the AG about whether the government would object to
hijabs being worn in classrooms if they were permitted by the college. The AG
responded that the state was fine with it and that it would only intervene if
grievances were filed under Section 131 of the Karnataka Education Act. In his
rebuttal, Devadatt Kamat claimed that the AG had given up 90% of the Government
Order in his arguments, effectively rendering the order inoperative, and that
there was no need for further discussion on whether wearing the hijab was an
essential religious practice.
Committees
For College Development
During
the hearing on February 16 (Day 5), the petitioners' senior advocate, Ravi
Varma Kumar, questioned the legality of the college development committees,
which are said to have been given the authority to decide on uniforms. He
claimed that neither the Karnataka Education Act nor the Rules promulgated
under it recognized CDCs. He also questioned the propriety of MLAs chairing
CDCs, who are bound by political party and ideology. He argued that MLAs
(legislators) could not be given executive powers. (13)During the
hearing on February 18, the state's Advocate General responded to the criticisms
(Day 7). He stated that the CDC was made up of the local MLA as President, a
person appointed by them as Vice-President, parents and students'
representatives, the college principal, and lecturers' representatives.
He
stated that the CDCs were established in accordance with the state government's
instructions under section 133(2) of the Karnataka Education Act. He also
claimed that under the Westminster form of government, MLAs could perform
executive functions.
Udupi
College and other educational institutions
The
state's Advocate General stated during the Day 7 hearing that the Udupi PU
College had a dress code in place since 2013, and that uniforms had been the
norm at the institution since its inception in 1985.Senior Advocate S. Nagaland
argued for the PU college, claiming that the college had decided to make
uniforms mandatory in 2004. For the past 20 years, the government had left it
up to the colleges to decide on uniforms, and there had been no problems with
them. Nagaland asserted that wearing the hijab was a "cultural"
rather than a religious practice.(14)(15)(16)He
emphasized that educational institutions had the authority to impose dress
codes in order to maintain discipline, and that in doing so, they were
exercising "parental powers." He stated that when a parent sends
their child to school, they delegate parental responsibility to the teacher or
institution (In loco parentis). (17)
R.
Venkataramani, an advocate for the teachers of the Government PU College,
argued that the practice of wearing hijab violates 'public order' under Article
25(1), and that when a religious practice violates the restrictions under
Article 25(1) (public order, morality, and health), determining whether the
practice is essential is unnecessary, because the question of essentiality
applies only when interpreting Article 25. Senior Advocate Sajan Novaya,
speakingon behalf of educational institutions, cited Article 28 of the Indian
constitution to argue that education was a secular activity and that no
religious instruction should be provided in schools.
Court's
decision
On
March 15, 2022, the Karnataka High Court upheld the educational institutes' ban
on wearing hijab. The court ruled that hijab is not an essential religious
practice in Islam and, as such, is not protected by Article 25 of the
constitution, which establishes the fundamental right to practice one's
religion. The court was surprised by the petitioners' lack of evidence to prove
hijab as a necessary religious practice. It conducted its own investigation by
consulting Abdullah Yusuf Ali's The Holy Quran: Text, Translation, and
Commentary, which was previously used by the Supreme Court of India in the
Sahara Bano case.(18) It
reproduced the various suras from the Quran on the wearing of hijab, followed by
Ali's footnote 3760 to verse 53, which read:"...Note that no screen or
hijab (Purdah) is mentioned for Muslim women in general, only a veil to cover
the bosom and modesty in dress." The screen was a special honor feature
for the Prophet's family, introduced about five or six years before his
death."
The
court also relied on Ali's remarks about the origins of wearing a hijab.
According to Ali, the Quran expressed concern about "molestation of
innocent women" during the time of Jahiliya (times of
"ignorance" prior to Islam) and thus recommended this and other
clothing as a measure of social security. It was not a religious practice, and
it was even less important to the Islamic faith. The court determined that the
Quran does not require Muslim women to wear hijab and stated, "What is not
religiously made obligatory therefore cannot be made a quintessential aspect of
the religion through public agitation or by passionate arguments in courts.
“The Karnataka High Court judges who delivered the hijab verdict weregiven
Y-category security, and two people were arrested for making threats.
The Supreme Court
The petitions requesting an urgent hearing of the case were
denied by the Supreme Court of India. Advocate asked the court to hear the case
as soon as possible so that the girls could take their school exams and avoid
losing their progress from the previous year. The Chief Justice of India, N. V.
Ramana, denied the request, stating that the exams have nothing to do with the
matter and that it should not be sensationalised.(19)(20)(21)
Violence
Several
incidents of violence have occurred in parallel with the protests. These were
allegedly the result of the victims' social media posts opposing the wearing of
the hijab in colleges. Dilip, a shopkeeper in Devanagari, was attacked and
stabbed by a mob after being dragged out of his shop. An angry mob of around
300 masked people wielding deadly weapons attacked a man named Naveen and his
mother, Saroj Amma, in the village of Nallur. Both were allegedly caused by
posting an anti-hijab status on WhatsApp, according to the victims' families.
On February 21, a Bajrang Dal member who participated in anti-hijab protests by
Hindu students was discovered murdered in the Shivamogga district. According to
police, the incident could have been caused by his prior involvement in at
least five assault and attempted murder cases with religious overtones.[22]The investigations are still
ongoing.
The
Home Minister stated that no link had been established between the protests and
the murder. A fatwa was issued against him earlier this year by the 'Mangalore
Muslims' Facebook group. Stones were thrown at his funeral procession, injuring
three people as it approached Saddish Road. A photojournalist, two bystanders,
and a police officer were all hurt. Some vehicles were also set
ablaze, and over 20 weredamaged. The crowd
retaliated by torching vehicles, tires, and stoning numerous commercial
establishments and Muslim-owned homes. The mob allegedly attacked local
journalists and damaged their cameras.Three of the five people suspected of
being involved in the murder have been apprehended.One of the petitioners in
the Karnataka High Court, Hazra Shifa, claimed that her brother Saif was beaten
up by a group of inebriated people who objected to their father's statements in
support of the hijab to a local news channel. She claimed in a social media
post that the attackers were "Sangh Parivar goons."
Reactions
(Domestic)
Rahul Gandhi, the leader of the opposition
Indian National Congress party, slammed the government, saying "We are robbing
the future of India's daughters by allowing their hijab to interfere with their
education. Hijab-wearing students being barred from entering school is a
violation of their fundamental rights."Maharashtra state minister Aaditya
Thackeray told journalists, "If schools have a uniform, there should be no
room for any other type of clothing.[23] Schools and colleges are
educational institutions, and only education should be imparted there."
Muslim Rastriya Manch (MRM), the Rastriya Swayamsevak Sangh's Muslim wing (RSS)
Anil
Singh, the MRM's PrintSankhla (Awadh), issued a statement in support of the
burqa-clad student who was heckled by youth shouting 'Jai Shri Ram' slogans at
a Karnataka college, saying 'purdah' is part of Indian culture. The MRM
distanced itself from Singh's statement, stating that it does not support such
"fanaticism and religious frenzy," and that it supports the enforcement
of dress codes in Karnataka's educational institutions.
According
to Madhya Pradesh Education Minister Inder Singh Parmar (BJP), "Hijab is
not a part of uniform and, therefore, I believe it should be prohibited."
The state government of Madhya Pradesh clarified that no proposal to outlaw the
hijab was being considered. Education ministers in BJP-ruled Himachal Pradesh
and Tripura said their governments had noplans to implement a uniform dress
code at this time. The education ministers of Maharashtra and West Bengal, both
of which are ruled by opposition parties, have accused the BJP of
"politicizing" school uniforms.
West
Bengal's education minister stated that his state would "never"
impose a hijab ban. The Maharashtra education minister insisted that the Indian
Constitution guaranteed religious freedom. Rajasthan Education Minister
Balakadas Kalla stated that hijab is not prohibited in his state and
accused
the BJP of "making issues out of non-issues."Sonam Kapoor – She
posted an Instagram photo of a man wearing a turban and a woman wearing a
hijab, questioning why a turban can be worn but a hijab cannot.Sadhvi Pragya, a
BJP MP, stated that "there is no[24]need to wear hijab
anywhere" and that only those who are "not safe in their own
homes" should wear hijab. She also stated that there is no need to wear a
hijab when in the company of Hindus, particularly at educational institutions.
Arif
Mohammad Khan, a BJP leader and the governor of Kerala, stated that Islam has
only five essential practices, and that hijab was not one of them, and thus
Article 25 of the Indian constitution did not apply to the hijab because the
article only covers essential, intrinsic, and integral practices. He also
stated that, as a result of the ban on triple talaq, Muslim women are
"having a sense of freedom," "pursuing education," and
"joining great careers," and that the ongoing debate is "not a
controversy, but a conspiracy" and a "sinister design" to push
back Muslim women, particularly young girls.
Kerala
Chief Minister Pinar Ayi Vijayan spoke out against the hijab controversy in
Karnataka, saying "This demonstrates how dangerous communism is to our
country. Secularism should be fostered in educational institutions. Rather,
efforts are being made to instill communal venom in youngchildren." He
shared a photo of schoolgirls in Kerala wearing hijabs on Twitter."What is
happening in Karnataka should not be allowed in Tamil Nadu," Kamal Haasan
said.According to the citizen group Bauta Karnataka, the violence related to
the Hijab controversy was perpetrated by members of Hindutva organizations
affiliated with the RSS, who coaxed, exhorted, and threatened youth. They also
claimed that anti-hijab protests in colleges across the state appeared to be
coordinated. They stated that they arrived at these conclusions after visiting
the sites of religious violence.
According to Congress leader Mukarram Khan,
those who oppose the hijab will be chopped into pieces. On February 16, a FIR
was filed against him, but he went into hiding.[24][25]He was apprehended in
Hyderabad but had to be admitted to a hospital due to health concerns. In an
interview with the BBC, journalist and author Rana Ayyub allegedly referred to
the hijab counter-protesters as "Hindu terrorists." A complaint was
filed against her under Section 295 of the IPC (insult to religion with
malicious intent). United States of America International Rashad Hussain, the
United States Ambassador-at-Large for International Religious Freedom, called
the hijab ban a violation of religious freedom.
Bahrain
The National Assembly of Bahrain has condemned the hijab ban imposed in an
Indian state's educational institutions. Kuwaiti MPs have joined international
condemnation of the hijab row, calling on Kuwait to bar BJP leaders from
entering the country. Pakistan Pakistani Foreign Minister Shah Mahmood Qureshi
charged India with denying Muslim girls the right to an education. According to
the Economic Times, he claimed that India is depriving Indian muslin girls of
an education simply because they wish to attend classes while wearing religious
headgear.
Ina
mullahSamangan, an Afghanistan Taliban spokesman, praised the college girls for
wearing hijab and defending their religious values. Human Rights Watch
criticized the ban as a violation of the right to an equal education.Malala
Yousafzai tweeted that it is abhorrent to bar girls wearing hijabs from
attending school. She stated that there were still objections to women's
clothing and demanded that Indian leaders stop the process of separating Muslim
women from the mainstream.
External
Affairs Ministry (MEA)
In
response to comments on the controversy made by some countries, including the
United States, the MEA's spokesperson stated that the matter is "under
judicial examination" and that the issue will be resolvedin accordance
with the "constitutional framework and mechanisms" and
"democratic ethos and polity.""Motivated comments" on
India's internal issues, he said, "are not welcome." In response
to the OIC General Secretariat's statement, the MEA's spokesperson called the
statement "motivated and misleading," and the OIC Secretariat's
mindset "communal." He also stated that "The Organization of the
Islamic Conference (OIC) is still being used by vested interests to further
their nefarious propaganda against India. As a result, it has only harmed its
own image."
Analysis
Of The Judgement
Over
the years, courts have used the 'essential religious practice' test to
determine which practices are protected by the Constitution and which can be
regulated by the state. The Karnataka High Court held in its decision upholding
restrictions on Muslim women wearing hijabs in educational institutions that
wearing the headscarf is not an "essential religious practice" in
Islam. This was the first question addressed by the court, and its response
served as the foundation for the remainder of the decision.
The
court dismissed the petitions challenging an order on (26) school
uniforms issued by the Government Pre-University (PU) College for Girls in
Udupi that prohibited the hijab, as well as the Karnataka government's 5
February order that supported the restriction.After ruling that wearing the
hijab is not an essential religious practice, the bench of Chief Justice Ritz
Raj Awasthi and Justices Krishna S. Dixit and J.M. Khazi asserted that the
hijab restriction was "reasonable" and constitutionally permissible,
and that students could not object. But what exactly is meant by
"essential religious practice," and how did Indian courts come to
apply such a standard? How did it evolve over time, and why did the court
eventually rule that the hijab did not pass muster? The Print elaborates.
What
Does The Test Indicate?
Article
25 of the Constitution guarantees "freedom of conscience and the free
exercise, practice, and propagation of religion." This right, however, is
not absolute and is limited by public order, morality, health, and other
fundamental rights. While Article 25 does not include any other conditions for
the protection of this right, courts have ruled over the years that the right
only protects "essential religious practices" and not all religious
practices. As a result, this test determines which religious practices are
protected by the Constitution.Over the years, courts have taken a variety of
approaches to the test. In some cases, they relied on religious texts to
determine essentiality, in others on empirical behavior of followers, and in a
few cases, on whether the practice in question existed when the religion was
founded. Court decisions on this test typically trace its origins to
Constituent Assembly debates and attribute it to a speech given by Dr. B.R.
Ambedkar. Dr. Ambedkar acknowledged on December 2, 1948, that religious beliefs
in India "cover every aspect of life, from birth to death."
"There
is nothing extraordinary in saying that we should strive hereafter to limit the
definition of religion in such a way that we shall not extend it beyond beliefs
and such rituals as may be connected with ceremonials that are essentially
religious," he added, he went on to say that "it is not necessary
that the type of laws, for example, laws relating to tenancy or laws relating
to succession, be governed by religion." Courts cited Ambedkar's use of
the term "essentially religious" to establish the essential religious
practice test.
The
Shirr Mutt case and 'basically religious': In 1954, a seven-judge bench of the
Supreme Court adopted Ambedkar's words in the Shirr Mutt case, which was one of
the first such instances of a court adopting Ambedkar's words. The court was
asked to define the constitutional scope of religious freedom in this case
because of a disagreement over the extent to which the Madras Hindu Religious
and Charitable Endowments Act, 1951, could control the management of the Shirr
Mutt, a monastery in Udupi."What constitutes the essential part of a
religion is primarily to be ascertained with reference to the doctrines of that
religion itself," the court observed."If the tenets of any Hindu
religious sect prescribe that food offerings be given to the idol at specific
hours of the day, that periodical ceremonies be performed in a certain way at certain
times of the year, or that there be daily recital of sacred texts or ablations
to the sacred fire, all of these would be regarded as parts of religion, and
the mere fact that they involve expenditure of money or employment of priests
and servants.
While some consider this to be the origin of
the test, other scholars argue that the Supreme Court's intent up until this
point was to draw a line between religious and secular. In other words, the
test was not intended to distinguish between religious practices that were
essential and those that were not. It was intended to differentiate between
practices that were fundamentally religious and those that were secular. The
latter practices could be legally restricted, but the former could not.What
does the test indicate? Article 25 of the Constitution guarantees "freedom
of conscience and so the free exercise, practice, and propagation of
religion." This right, however, isn't absolute and is proscribed by public
order, morality, health, and other fundamental rights. While Article 25 doesn't
include the opposite conditions for the protection of this right, courts have
ruled over the years that the right only protects "essential religious
practices" and not all religious practices.
As a result, this test determines which
religious practices are protected by the Constitution. Over the years, courts
have taken a spread of approaches to the test. In some cases, they relied on
religious texts to determine essentiality, in others on empirical behavior of
followers, and in an exceedingly few cases, on whether the practice in question
existed when the religion was founded.
Court
decisions on this test typically trace its origins to Constituent Assembly
debates and attribute it to a speech given by Dr. B.R. Ambedkar. Dr. Ambedkar
acknowledged on December 2, 1948, that religious beliefs in India "cover
every aspect of life, from birth to death." "
There
is nothing extraordinary in saying that we should strive hereafter to limit the
definition of religion in such the only way that we shall not extend it beyond
beliefs and such rituals as could even be connected with ceremonials that are
essentially religious," he added, he went on to say that "it isn't
necessary that the sort of laws, as an example, laws regarding (27) tenancy
or laws regarding succession, be governed by religion." Courts cited
Ambedkar's use of the term "essentially religious" to see the
essential religious practice test. The Shirr Mutt case and 'basically
religious' In 1954, a seven-judge bench of the Supreme Court adopted Ambedkar's
words within the Shirr Mutt case, which was one of the first such instances of
a court adopting Ambedkar's words. The court was asked to define the
constitutional scope of spiritual freedom during this case because of a disagreement
and so the mere undeniable fact that they involve expenditure of money or
employment of priests and servants. While some consider this to be the origin
of the test, other scholars argue that the Supreme Court's intent up until this
point was to draw a line between religious and secular. In other words, the
test wasn't intended to inform apart between religious practices that were
essential and folks that weren't. it had been intended to differentiate between
practices that were fundamentally religious and folks that were secular.
The latter practices may be legally
restricted, but the previous couldn't. Shirr Mutt all the due to Sabarimala.
However, the 'essentially religious' test gradually gave because of the
'essential religious practice test,' with the Allahabad judicature ruling in
1957 that bigamy couldn't be considered an integral part of Hinduism, and
another Supreme Court ruling in 1958 holding that the sacrifice of a cow on the
occasion of Id wasn't a crucial religious practice for Muslims.
The Supreme Court used the test of essential
religious practices in 2004 to determine whether the Tandava dance was a very
important rite of the Ananda Marga Faith. It ruled that the faith was founded
in 1955, but the Tandava dance wasn't adopted until 1966. As a result, the
court ruled that because the faith existed before the adoption of the dance,
the latter couldn't be considered a necessary feature of the faith. The Bombay
tribunal allowed women to enter the Haji Ali Dargah's sanctum sanctorum in
2016, ruling that the Haji Ali Dargah Trust's decision to exclude them was
illegal and unconstitutional. The court ruled in its decision that the Trust
had failed to present any evidence to indicate that the exclusion of women from
dargahs was an "essential feature" of Islam.
Recently,
the Supreme Court ruled in 2017 that triple talaq wasn't an important practice
of Islam and thus couldn't be afforded constitutional protection under Article
25. In 2018, the Supreme Court rejected the claim of 'Ayapanas' (pilgrims) that
the exclusion of women between the ages of 10 and 50 from entering the temple
was a necessary practice within the Sabarimala case. However, a review petition
against this decision is currently pending before the Supreme Court. during a
landmark case that may have ramifications across the country, a judicature in
India's Karnataka state ruled that the hijab isn't "essential" to
Islam. The court also upheld an authorities order prohibiting the wearing of
headscarves in school.
Protests
erupted in January when a Karnataka college barred Muslim girls wearing the
hijab from entering. The situation quickly escalated, forcing the state to shut
schools and colleges for several days. The Indian girls who are fighting for
the correct to wear a hijab in college. The hijab controversy is dividing
Indian classrooms. Allowing Muslim women to wear the hijab in classrooms, per
the three-judge panel, would impede their emancipation and violate the
constitutional spirit of "positive secularism."
The
129-page order uses passages from the Quran and books on Islam to argue that
the hijab isn't a spiritual practice that has to be followed."There is
enough intrinsic material within the scripture itself to support the view that
wearing a hijab is merely optional, if at all." what's not religiously
made obligatory cannot thus be made a quintessential aspect of faith through
public agitation or passionate arguments in court," the order states.
"We
feel betrayed by our own country," she explained Almas AH, another
petitioner, stated that they're going to take the fight to the Supreme Court,
"I'm not visiting college unless I wear my hijab." "And I will
be able to fight for it because the hijab is a very important a part of my
religion," she said. the decision has been welcomed by the Karnataka
government. Thousands of individuals in India, where Muslims are a minority,
had been watching the court proceedings with bated breath.While hearing the case,
the bench issued a contentious interim order prohibiting students from wearing
religious clothing, including the hijab, until a verdict was issued.
As a
result, several Muslim women skipped classes and even exams while the case was
being heard. The row also polarized opinions, with critics seeing it tile now
another attempt by Prime Minister Narendra Modi's Hindu nationalist government
to marginalize Muslims. The controversy began in Karnataka's Udupi district
when a government-run college forbade six teenage students from wearing the
hijab in school.
The
college stated that students were permitted to wear the hijab on campus and
were only required to get rid of it inside the classroom. However, the girls,
who were all wearing the desired college uniform, went on strike outside the
school, arguing that they must be allowed to hide their hair in school. Udupi
is one amongst three districts in Karnataka's communally sensitive coastal
region that Mr. Modi's right-wing Bhartiya Janata Party considers to be a stronghold
(BJP).Protests quickly spread to other colleges throughout the state, which is
additionally governed by the BJP.
Some
Hindu students began wearing saffron shawls to class, despite the very fact
that the color is taken into account a Hindu symbol, forcing officials to
insist that both couldn't be permitted on campus. After some demonstrations
devolved into violence, the problem drew international attention. Malala
Yousafzai, a Nobel Peace winner, tweeted about the problem, urging India's
leaders to require action to "stop the marginalization of Muslim
women."
Summary
On
March 15, 2022, a three-judge bench of the Karnataka tribunal, comprised of
jurist Ritu Raj Awasthi and Justices Krishna Dixit and J.M. Khazi, upheld the
ban on hijab within the state's educational institutions. On February 5th,
2022, the Karnataka Government issued an Order prohibiting student from wearing
the hijab in State educational institutions with a code.
This
Order was later challenged in Karnataka state supreme court. On February 11th,
the Court issued an Interim (28)Order prohibiting all religious
symbols, including hijabs and saffron shawls, from being worn in classrooms.
The Court addressed four major issues in its March 15th decision upholding the
ban.
Is
Hijab Wearing Protected by the proper to Freedom of Conscience? Muslim students
claimed that the hijab ban violated their right to freedom of conscience under
Article 25 of the Indian Constitution of 1950.Muslim students argued in Bijou
Emmanuel v State of Kerala, 1986, that because wearing the hijab could be a a
part of their conscientious belief, it must be protected. it's not necessary to
research the need of the practice so as to work out whether a Right to Freedom
of Conscience is at stake.
The
Court distinguished between 'Freedom of Conscience' and 'Religious Expression'
in its decision, claiming that while conscience is an enclosed belief,
religious expression is an outward expression of that belief. The hijab could
be a style of religious expression that has to pass the Essential Religious
Practices test. Muslim students claimed the hijab ban violated their Article 25
right to non-secularexpression. Muslim students argued that wearing the hijab
is a vital religious practice, citing Islamic scriptures and claiming that
wearing the hijab is a necessary aspect of their religion. This Essential
Religious Practice cannot be restricted by the State.
According
to the Court, wearing the hijab isn't a non-secularpractice. It is, rather, a
cultural practice. The hijab evolved as a security measure for girls, and it
absolutely was linked to the socio-cultural conditions that existed at the time
the Quran was written. It can't be considered a fundamental aspect of the
faith. is that the Hijab a compulsory Religious Practice in Islam? The Court
ruled that wearing a hijab isn't a required religious practice. It didn't
qualify for cover under Article 25 of the Indian Constitution of 1950.
The
Muslim students contended that wearing the hijab is an expression under Article
19(1)(a), citing National Legal Services Authority v Union of India, 2014. the
scholars also claimed that wearing a hijab is protected under the proper to
Privacy. Students must be given "reasonable accommodations" so as to
exercise this right. The Court noted the worldwide consensus that educational
institutions may impose uniforms and dress codes. The imposition of a code by
the authorities could be a reasonable restriction that doesn't violate
constitutionally protected rights because it's "religion-neutral" and
"universally applicable" to all or any students. it had been noted
that the code actually promotes secularist principles.
Furthermore,
the Court stated that the Muslim students were contesting a violation of their
'derivative rights' rather than their ‘substantiverights. ‘The Court admitted
that the right to choose what one wears is a component of one's autonomy and
expression. This, however, must be subject to reasonable constraints. To
maintain discipline and decorum in qualified public spaces such as schools,
freedom may be limited. The Court rejected the argument that students should be
allowed to wear hijabs in colors and designs that match their uniforms. This is
due to the fact that if allowed, "the school uniform ceases to be uniform."
Is the
Government Order Purportedly Prohibiting Hijab Wearing Valid?
The
Court upheld the validity of the State government's Order issued on February
5th. The Order, it was ruled, was(29) issued in furtherance of the
Karnataka Education Act, 1983. Under Section 133(2) of the Act, which empowers
the Government to give effect to the Act's purposes by issuing Orders and
forming bodies such as the College Development Committees, the Government had
the authority to prescribe a dress code.The Bench declined to order a
disciplinary hearing against the principal and teachers of the Government PU
College, where students were first barred from wearing the hijab. The Court
stated that it found no merit in the petition requesting that the Court conduct
an investigation into the involvement of Islamic organizations in the
anti-hijab protests.
Conclusion
And Future
The
hijab 'isn't a necessary part of Islam as the Karnataka High Court ruled that
wearing the hijab is not an essential religious practice under Islam, which
means it can be regulated by the state. To reach this conclusion, the court
consulted a Quranic commentary and determined that there is no "Quranic
injunction" or mandate against wearing the hijab.
The
court stated, adding that "the practice of wearing this apparel may have
something to do with culture but certainly not with religion."It went on
to say that "what is not religiously made obligatory and cannot thus be
made a quintessential aspect of the religion through public agitation or by
passionate arguments in courts."
As a result, the court concluded that
"the wearing of hijab by Muslim women does not constitute an essential
religious practice in the Islamic faith." The test's future is unknown.
However, the test has been chastised on several occasions. Critics have
frequently pointed out that it forces judges to become "ecclesiastical
authorities (often for religions other than their own)." In the Sabarimala
case, Justice D.Y. Chandrachud lamented that "compulsions nonetheless have
led the court to don a theological mantle.