Bengaluru: The larger bench of the Karnataka High Court has ruled that the hijab is not an essential practice of Islam and the uniform is a reasonable restriction in educational institutions. The court dismissed the petitions challenging the ban on the hijab in educational institutions in the state.
The hijab controversy began when a Udupi school banned them inside the classrooms, prompting the girls to challenge the order in the Karnataka High Court.
The three-judge bench comprised Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi in their verdict observed that no case has been made out by the petitioners for invalidation of the state government order of February 5. The pf wearing of uniform is a reasonable restriction that students cannot object to. The court said that it has taken a holistic view of the questions involved.
During his submissions, the AG had cited four judgments before the court, including the Shiroor mutt case and the Sabarimala judgment, to submit that in order to know whether a practice is an essential religious practice, one must remove that practice and see if the nature of religion changes, or if there is there a fundamental change in the religion. If it doesn’t then it is not an essential practice, the AG submitted.
“An essential part of religion refers to the core belief upon which a religion is founded. Essential practice means those practices that are fundamental to following a religious belief. It has to be seen whether the nature of religion will be changed, will there be a fundamental change in the structure of belief? Then it is an essential religious practice,” the AG added. The AG said that this particular case has five aspects — 1) Is the practice of wearing the hijab fundamental to religion? 2) Will not wearing the hijab change the religion? 3) Was practice there before the birth of religion? 4) Is the foundation of religion based on the practice? and 5) Is the practice binding to the religion?
“Petitioners have not shown any material to prove hijab is an essential religious practice. It is their burden to prove so. Our investigation has shown it is not an essential practice,” the Advocate General told the court. He added that religious practices should be mandatory and not optional to qualify as essential practices.
Ahead of the hijab row verdict, Section 144 was imposed in Bengaluru and educational institutions were closed.
Ahead of the verdict, the Muslim student Muskan, who protested, said, “We trust our Constitution. We’ll wait for the judgment. Everyone should maintain peace. We should all be like brothers and sisters and go to college. Let’s all go back to how we were before in college, supporting and protecting each other. I believe they [counter-protesters] are my brothers.”
The background of the controversy
On January 1, some Muslim students of the pre-university college in Karnataka’s Udupi were not allowed to attend classes wearing a hijab, as the dress was against the prescribed norms of the college. The College Development Committee president, BJP MLA Ragupathi Bhat, said students who are protesting and sitting outside [the campus] are ‘free to leave’.
“A Transfer Certificate (TC) will be given and they can go to any college that will allow them to do so. But, our policy is clear. No hijabs in the classroom,” the MLA said. The role of MLAs in CDCs was a point of debate during the high court hearings, with the petitioners challenging the administrative role of the MLAs.
On January 26, the Karnataka government set up an expert committee to resolve the issue. It was announced that all girls should adhere to uniform rules until a committee offers its recommendations.
Meanwhile, Udupi students filed a writ petition in the Karnataka High Court seeking a declaration that wearing a hijab is a fundamental right. The plea stated that the Indian constitution guarantees the freedom of conscience and the right to profess, practise and propagate religion.
The first instances of the hijab issue spreading to other colleges were reported on January 3. A section of college students in Karnataka’s Koppa district wore saffron scarves protesting against allowing Muslim girls to wear hijab inside the classroom. Similar protests erupted in Mangaluru colleges on January 6.
In February, Kundapur college authorities, citing new government guidelines, asked girl students not to come to college wearing hijabs. When the girl students refused, several students came to college wearing saffron shawls. Students in Shivamogga college also protested against hijab in classrooms. Kundapura and Shivamogga were to become the epicentre of pro and anti-hijab protests that were set to follow.
Nazila, who was one of the students not allowed to enter the college premises with a hijab, said the Kundapura management pushed the girls and stopped them from entering the college.
“There were 28 girls. We asked our principal, but they did not give any answers. They are saying that the rule was introduced by the government. They are not seeing us like students,” Nazila told India Today, adding that they were admitted to college with hijabs earlier.
Karnataka government ordered a ban on clothes that disturb equality, integrity and public order in schools and colleges. The state government invoked 133 (2) of the Karnataka Education Act-1983, which says a uniform style of clothes has to be worn compulsorily. The dress code was chosen by the College Development Committee or the appellate committee of the administrative board of the pre-university colleges, which come under the pre-university education department.
On February 8, students wearing saffron scarves raised slogans against Muslim girls donning the hijab at the Mahatma Gandhi Memorial College (MGM) in the Udupi district. The students wearing saffron scarves raised ‘Jai Shri Ram’ slogans and confronted the Muslim students. The school authorities intervened to keep both groups of students away from each other.
Karnataka High Court began hearing the case, and the faceoff between students for and against hijab reached boiling point. Saffron-clad students prevented Muslim girls from attending classes and the girls refused to budge. A video of a mob chanting ‘Jai Shri Ram’ accosting a girl outside a college went viral. The girl, in turn, responded with ‘Allah-hu-Akbar’.
Section 144 was imposed in Shivamogga after incidents of stone-pelting were reported on February 8. Protests in Bagalkot also turned violent after stones were pelted and the police had to resort to lathi-charge. The Karnataka High Court appealed to students and people to maintain peace and tranquillity and the government closed all schools and colleges.
Pro-hijab protests and rallies were stagged in several places including New Delhi, Tamil Nadu and Malegaon. Muslim women came out in large numbers to show support for students fighting against the hijab ban in schools and colleges in Karnataka.
On February 10, the three-judge bench comprising of Chief Justice of Karnataka High Court Ritu Raj Awasthi, Justice Krishna S Dixit, and Justice JM Khazi stated that colleges in Karnataka can reopen but no student can wear anything religious till the matter is pending before the court. Following the interim order, schools and colleges in the state were opened in a phased manner. All colleges were re-opened on February 16.
Karnataka government contended that hijab is not an essential religious practice of Islam and preventing its use did not violate Article 25 of the Indian Constitution, which guarantees religious freedom. Advocate General Prabhuling Navadgi said that the government has taken a stand that wearing the hijab is not an essential practice under Islam.
PU College, which was the epicentre of the Karnataka hijab row told the high court that the Campus Front of India (CFI) was a radical organisation that was spearheading the issue. Counsel for the PU College, senior advocate SS Naganand, said that the uniform was made compulsory by the college in 2004 and there had been no issue until the CFI met some students who wanted to wear hijab to college.
He added, “Representatives of the CFI came and met the college authorities saying the students should be allowed to wear hijabs. Only after that, ruckus started happening and students started protesting.”