Hijab not part of essential Islamic religious practice, rules Karnataka HC; Verdict challenged in SC

NEW DELHI: Holding that hijab was not part of the "essential religious practice" in Islamic faith, the Karnataka High Court on Tuesday upheld the state government's ban on wearing the headscarf in educational institutions that had triggered protests by Muslim girl students and also a tense hijab-versus-saffron scarf row.

Hours after the high court dismissed petitions by some Muslim girl students from two government colleges in Udupi for removing the hijab curbs in classrooms, one of them challenged the verdict in the Supreme Court. The high court had also said the prescription of school uniform is only a "reasonable restriction", constitutionally permissible which the students cannot object to.

The Chief Justice Ritu Raj Awasthi-led three-judge full bench also spoke about the possibility of some 'unseen hands' behind the hijab row to engineer social unrest and disharmony and expressed dismay over the issue being blown out of proportion by the powers that be. The other two judges on the bench were Justice Krishna S Dixit and Justice J M Khazi. In its 129-page judgement, the court said that school uniforms will cease to be a uniform if hijab is also allowed.

The Special Leave Petition(SLP) before the apex court contended that the high court has failed to note that the right to wear a hijab comes under the ambit of ‘expression’ and is thus protected under Article 19(1)(a) of the Constitution. In Udupi, the petitioner students from two junior colleges in the coastal town put up a brave face, and said they will not go to college without hijab and will fight the case legally till they get "justice". "We will fight for justice and our rights. "The verdict which came today is unconstitutional...the Constitution itself provides us (our rights) to follow my religion and whatever I can wear," one of the students told a news conference.

While Karnataka chief minister Basavaraj Bommai urged everyone to abide by the judgement and maintain peace, saying education was primary, the Muslim students' body Campus Front of India (CFI) said it is an "alarming sign" that the judiciary interprets religious texts. Primary and secondary education minister BC Nagesh said efforts will be made to bring the 'misguided' Muslim girls to the mainstream after the "landmark" verdict. Several BJP leaders hailed the verdict and said the entire debate on the issue should be seen from the context of women's empowerment. But political parties and religious organisations in Jammu and Kashmir described the verdict as "deeply disappointing", and said the issue was not only about religion but the freedom to choose.

The high court said it formulated four questions and answered them accordingly taking a holistic view of the entire matter. The question for consideration was, whether wearing a hijab or headscarf is a part of "essential religious practice" in the Islamic faith protected under Article 25 of the Constitution. "The answer to this question is that we are of the considered opinion that the wearing of hijab by Muslim women does not form a part of Essential Religious Practice in Islamic faith," the chief justice said while reading out from the order.

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The second poser was whether the prescription of school uniform is not legally permissible, as being violative of petitioners' Fundamental Rights guaranteed under Articles, 19(1)(a) related to the freedom of expression and 21, dealing with privacy, of the Constitution. The court responded to say that "the prescription of school uniform is only a reasonable restriction constitutionally permissible which the students cannot object to." On the third question, it maintained that the state government has the power to issue the February 5, 2022 order that imposed the hijab ban and said no case is made out for its invalidation.

The Karnataka government order had banned the wearing of clothes that disturb equality, integrity and public order in schools and colleges. On the fourth question regarding issuance of a direction for initiating disciplinary enquiry against respondents including the Government PU Girls College in Udupi, its principal and teacher, the court said no case is made out. Six girl students of a junior college in Udupi had attended a press conference held by the CFI in the coastal town in January this year, protesting against the college authorities denying them entry into the classroom wearing a hijab. The hijab row erupted into a major national issue ahead of the assembly polls in five states including Uttar Pradesh, and sparked violent protests in Karnataka. Clashes also broke out between supporters of the hijab and right-wing outfits. In some colleges, Hindu students had come to the campus with saffron scarves around their necks to protest against Muslim girls wearing hijab.

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"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 dismayed as to how all of a sudden that too in the middle of the academic term the issue of hijab is generated and blown out of proportion by the powers that be," the high court said. The court said there is absolutely no material placed on record to prima facie show that wearing of hijab is a part of an essential religious practice in Islam and that the petitioners have been wearing hijab from the beginning. Addressing the plea that hijab of the same colour as of the school uniform be allowed, the court said it was not impressed by this argument, saying it would establish a sense of "social-separateness", which is not desirable. Senior BJP leader Ravi Shankar Prasad, a former union law minister, said the school norm of prescribing a dress code has to be followed because that comes under reasonable restriction. PDP president Mehbooba Mufti said that on the one hand we talk about empowering women yet we are denying them the right to a simple choice.

"It isn't just about religion but the freedom to choose," the former J and K chief minister wrote on Twitter. National Conference (NC) leader Omar Abdullah, also a former CM, said it was a "travesty" that the court did not uphold the basic right of a woman to choose how she wants to dress. Leader of Opposition Siddaramaiah said everyone must "bow down" to the court order. Prominent Muslim body Jamiat Ulema-e-Hind expressed deep disappointment and said the verdict would have an adverse impact on the religious freedom and education of Muslim girls.

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Kerala Governor Arif Mohammed Khan welcomed the court ruling. At the start of the Hijab controversy, Khan had said the wearing of the headscarf was not an essential religious practice in the Islamic faith. "I sincerely pray and hope that these continuous attempts to push back the young women, especially young Muslim women, into the four walls of the house, fall down," Khan said. AIMIM leader and Lok Sabha MP Asaduddin Owaisi said he disagrees with the judgement "...If it is MY belief & faith that covering my head is essential then I have a right to EXPRESS it as I deem fit. For a devout Muslim, hijab is also an act of worship." "It's time to review the essential religious practice test. For a devout person, everything is essential & for an atheist nothing is essential" he said in a series of tweets.