Social Separateness, Safe Space And Positive Secularism- Karnataka High Court's Reasons For Upholding Restriction On Hijab

The 128 page judgment of the full bench of the Karnataka High Court comprising of Chief Justice Ritu Raj Awasthi, Justice Krishna S. Dixit and Justice J. M. Khazi is a unanimous decision. It is not clear who authored the judgment that starts by quoting from a research article by Sara Slininger from Centralia, Illinois.

1. Questions for consideration

The Court frames the following 4 questions for consideration:-

i. Whether wearing hijab/head-scarf is a part of 'essential religious practice' in Islamic Faith protected under Article 25 of the Constitution?

ii. Whether prescription of school uniform is not legally permissible, as being violative of petitioners Fundamental Rights inter alia guaranteed under Articles, 19(1)(a), (i.e., freedom of expression) and 21, (i.e., privacy) of the Constitution?

iii. Whether the Government Order dated 05.02.2022 apart from being incompetent is issued without application of mind and further is manifestly arbitrary and therefore, violates Articles 14 & 15 of the Constitution?

iv. Whether any case is made out in W.P.No.2146/2022 for issuance of a direction for initiating disciplinary enquiry against respondent Nos.6 to 14 and for issuance of a Writ of Quo Warranto against respondent Nos.15 & 16?

2. Secularism and freedom of conscience & religion under our constitution

The Court holds that our country follows a 'positive secularism' which is not an antithesis of religious devoutness but comprises in religious tolerance. The Court refers to Article 51A(e) and states that "constitutional duty to transcend the sectional diversities of religion finds its utterance in section 7(2)(v) & (vi) of the 1983 Act (The Karnataka Education Act, 1983) which empowers the State Government to prescribe the curricula that would amongst other inculcate the sense of this duty".

3. Constitutional right to religion and restrictions thereon

The Court holds that Article 25 juxtaposed with other Articles in Part III of the Constitution show that the freedom guaranteed by Article 25 in terms of sanctity, are placed on comparatively a lower pedestal by the Makers of our Constitution qua other Fundamental Rights conferred in Part III.

The Court notes that the first amendment to the US Constitution confers freedoms in absolute terms and the restrictions on those freedoms are the exceptions evolved by their Courts. "However, the Makers of our Constitution in their wisdom markedly differed from this view. Article 25 of our Constitution begins with the restriction and further incorporates a specific provision i.e., clause (2) that in so many words saves the power of State to regulate or restrict these freedoms", the Court holds.

4. Protection of Essential Religious Practice and test to ascertain it

The Court holds that merely because a practice claimed to be essential has been carried on since time immemorial or is grounded in religious texts, per se does not lend to it the constitutional protection unless it passes the test of essentiality as is adjudged by the Courts in their role as the guardians of the Constitution.

The Court holds that after the decision in the Triple Talaq case and the Sabarimala Case, "...a person who seeks refuge under the umbrella of Article 25 of the Constitution has to demonstrate not only essential religious practice but also its engagement with the constitutional values".

5. Sources of Islamic Law and Holy Quran as its principal source

The Court accepts the structural hierarchy of binding nature of Islamic norms starting from Quran and ending with Haram, as stated in the Triple Talaq case.

The Court relies upon 'The Holy Quran: Text, Translation and Commentary' by Abdullah Yusuf Ali, (published by Goodword Books; 2019 reprint), based on the broad unanimity at the Bar as to its authenticity and reliability.

6. Hijab being a Quranic Injunction

The Court starts by quoting sūra (ii) verse 256 from Holy Quran which states, "Let there be no compulsion in religion…".

The Court holds that prescription of hijab Quran is only directory, "because of absence of prescription of penalty or penance for not wearing hijab, the linguistic structure of verses supports this view".

"This apparel at the most is a means to gain access to public places and not a religious end in itself. It was a measure of women enablement and not a figurative constraint", the Court holds.

The Court holds that wearing hijab is not religion-specific, but a socio-cultural practice in the middle east. The Court quotes from a research paper by Sara Slininger from Centralia, Illinois for the purpose.

"Regard being had to the kind of life conditions then obtaining in the region concerned, wearing hijab was recommended as a measure of social security for women and to facilitate their safe access to public domain. At the most the practice of wearing this apparel may have something to do with culture but certainly not with religion", the Court holds.

The Court holds that what started as a measure to protect women and that in the course of time, some elements of religion permeated into the practice.

"What is not religiously made obligatory therefore cannot be made a quintessential aspect of the religion through public agitations or by the passionate arguments in courts", the Bench states.

The Bench disregards translations of the book relied upon by some petitioners by doubting credentials of the translators.

7. Other High Courts on Hijab as Essential Religious Practice

The Bench distinguishes the judgment of a single bench of the Kerala High Court in the matter of Amanah Bint Basheer v. CBSE by holding that it was not a case where a uniform was prescribed and that there was a resonable option to frisk the students before entering the examination hall. The Bench also notes that the judgment itself holds that a different view about the essentiality of practice is possible based on "Ijithihad (independent reasoning)".

On the judgment of the same judge of Kerala High Court in the matter of Fathima Thasneem v. State of Kerala, the Court holds that the decision simply follows the reasoning in the earlier, aforesaid judgment, and that the facts are completely different, involving competing rights of minority educational institutions.

As far as the judgment of Bombay High Court in Fathima Hussain v. Bharath Education Society is concerned, the Court notes that as per the judgment, the hijab is not an obligatory overt act enjoined by Islam.

On the judgment of Madras High Court in the matter of Venkata Subbarao Matriculation Higher Secondary School Staff Association v. Sir M. Venkata Subbarao Matriculation Higher Secondary School, the Court holds that the judgment does not discuss rights under Article 25.

The Court also holds that the decision of Allahabad High Court in the matter of Prayag Das v. Civil Judge Bulandshahr is of no relevance except giving justification for prescribing uniform.

8. Wearing of hijab being a matter of freedom of conscience

The Court holds that 'conscience' is by its very nature subjective. It notes that whether the petitioners had the conscience of the kind and how they developed it are not averred in the petition with material particulars. "Merely stating that wearing hijab is an overt act of conscience and therefore, asking them to remove hijab would offend conscience, would not be sufficient for treating it as a ground for granting relief", the Court holds.

The Court states that the judgment of the Supreme Court in the matter of Bijoe Emmanuel & Ors v State Of Kerala is more on the right to religion than freedom of conscience, although there is some reference to the conscience.

"What is noticeable is that BIJOE EMMANUEL did not demarcate the boundaries between 'freedom of conscience' and 'right to practise religion' presumably because the overt act of the students in respectfully standing up while National Anthem was being sung transcended the realm of their conscience and took their case to the domain of religious belief", the Court holds.

9. Pleading and proof as to Essential Religious Practice

The Court has held that the Writ Petitions lack the essential averments and that the petitioners have not produced any evidentiary material to prove their case. "We have no affidavit before us sworn to by any Maulana explaining the implications of the suras quoted by the petitioners' side", the Court notes.

The Court notes that there is no pleading about how long all the petitioners have been wearing hijab and as to the petitioners wearing hijab before they joined this institution.

"In view of the above discussion, we are of the considered opinion that wearing of hijab by Muslim women does not form a part of essential religious practice in Islamic faith", the Court holds.

10. School school discipline, uniform and power to prescribe the same

The Court repels the argument that there is no such power in the scheme of the 1983 Act or the rules promulgated thereunder. The Court traces the ancient origin of the practice of prescribing uniform in educational institutions.

The Court terms the argument of petitioners that prescribing school uniforms is an exercise of 'police power' which cannot be done without the support of a law, as "too farfetched".

"The word 'curricula' employed in section 7(2) of the Act needs to be broadly construed to include the power to prescribe uniform. Under the scheme of 1983 Act coupled with international conventions to which India is a party, there is a duty cast on the State to provide education at least up to particular level and this duty coupled with power includes the power to prescribe school uniform", the Court holds.

The Court holds that the power to prescribe uniform as of necessity inheres in every school, subject to just exceptions.

11. Prescription of school uniform to the exclusion of hijab violates articles 14, 15, 19(1)(a) & 21

The Court holds that the prescription of dress code for the students within the four walls of the class room as distinguished from rest of the school premises does not offend the constitutionally protected category of rights, when they are 'religion-neutral' and 'universally applicable' to all the students.

The Court holds that School uniforms promote harmony and spirit of common brotherhood transcending religious or sectional diversities. "They inculcate secular values amongst the students in their impressionable & formative years", the Court holds.

"..the petitions we are treating do not involve the right to freedom of speech & expression or right to privacy, to such an extent as to warrant the employment of these tests for evaluation of argued restrictions, in the form of school dress code. The complaint of the petitioners is against the violation of essentially 'derivative rights' of the kind. Their grievances do not go to the core of substantive rights as such but lie in the penumbra thereof. So, by a sheer constitutional logic, the protection that otherwise avails to the substantive rights as such cannot be stretched too far even to cover the derivative rights of this nature, regardless of the 'qualified public places' in which they are sought to be exercised. It hardly needs to be stated that schools are 'qualified public places' that are structured predominantly for imparting educational instructions to the students", the Court holds.

The Court terms the argument regarding diversity in the classroom, hollow rhetoric. The Court states that though the basic human rights are universal, their regulation as of necessity is also a constitutional reality. "The restriction and regulation of rights be they fundamental or otherwise are a small price which persons pay for being the members of a civilized community", the Court holds.

The Court holds that the "extreme argument" that the students should be free to choose their attire in the school individually, if countenanced, would only breed indiscipline that may eventually degenerate into chaos in the campus and later, in the society at large.

The Court holds that permitting hijab based on the 'principle of reasonable accommodation' will establish an undesirable sense of 'social-separateness' among students and that the accommodation is not reasonable.

The Bench holds that the aim of the regulation is to create a 'safe space' where divisive lines should have no place and the ideals of egalitarianism should be readily apparent to all students alike.

The Court refused to follow the South African Court's decision permitting the wearing of a nose ring, stating that how a foreign jurisdiction treats the case cannot be the sole model readily availing for adoption in our system. The Court also notes that the case involved a nose stud, which is ocularly insignificant.

The Court disregards the Malaysian Court's decision upholding the right to wear hijab, stating that Malaysia is an Islamic theistic state.

"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", the Court holds.

12. Validity of government circular dated 31.1.2014 concerning formation of school betterment (development) committees

The Court notes at the circular has not been challenged by any party and that it has been functioning for eight years without complaint. "Merely because these Committees are headed by the local Member of Legislative Assembly, we cannot hastily jump to the conclusion that their formation is bad", the Court holds.

The Court, however, say that there may be some scope for the view that it is not desirable to have elected representatives of the people in the school committees of the kind, "one of the obvious reasons being the possible infusion of 'party-politics' into the campus".

13. Validity of government order dated 5.2.2022 providing for prescription of dress codes in educational institutions

The Court holds that the state has the competence to pass the government order based on the statute. It also holds that since the order can be sustained on the basis of intrinsic material, the question of un-sustainability of some of the reasons on which the said Order is constructed, pales into insignificance.

The Court holds that the principle of 'hecklers veto' is not invocable for invalidating the government order, which per se does not prescribe any uniform but only provides for prescription in a structured way.

The Court states that the order could have been better drafted and that though the term 'public order' is used in the order, there is no scope for invoking the concept of 'law and order' although the order gives a loose impression that there is some nexus between wearing of hijab and the 'law & order' situation.

The Court rejects the argument that the order was issued hastily and states that it is too feeble a ground for faltering a policy decision.

"In view of the above, we are of the considered opinion that the government has power to issue the impugned Order dated 05.2.2022 and that no case is made out for its invalidation", the Court holds.

14. International conventions and emancipation of women

"Women regardless of religion being equal, if not superior to men, are also joining defence services on permanent commission basis vide Apex Court decision", the Court noted.

The Court quotes from Dr. Ambedkar on purdah and states that the same applies to hijab. The Court holds that wearing of such apparel hinder the process of emancipation of woman and militates against our constitutional spirit of 'equal opportunity' of 'public participation' and 'positive secularism'.

15. Prayer for a writ of Quo Warranto in some Writ Petitions

The Court has held that the prayer for disciplinary enquiry and writ of Quo Warranto against some of the respondents are not maintenable since Departmental Guidelines relied upon by the petitioners do not have the force of law and since grounds for issuing a writ of Quo Warranto have not been made out. Court also holds that the writ cannot be issued against the offices against which it was sought, since they are not public offices.

"In view of the above, we are of the considered opinion that no case is made out in W.P. No.2146/2022 for issuance of a direction for initiating disciplinary enquiry against respondent Nos. 6 to 14. The prayer for issuance of Writ of Quo Warranto against respondent Nos. 15 and 16 is rejected being not maintainable", the Court held.

The Court express concern over the way the controversy erupted and escalated. "The way, hijab imbroglio unfolded gives scope for the argument that some 'unseen hands' are at work to engineer social unrest and disharmony. Much is not necessary to specify. We are not commenting on the ongoing police investigation lest it should be affected", the Court observed while stating that it expects a speedy and effective investigation into the matter.

16. Public Interest Litigations

The Court held that it is not inclined to entertain these two Writ Petitions filed in PIL jurisdiction, both on the ground of their maintainability and merits especially when a battery of eminent lawyers are representing the parties in other cases.

"In view of the above, we are of the considered opinion that both the above Writ Petitions filed as Public Interest Litigations are liable to be rejected, absolutely no case having been made out for indulgence", the Court held.

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