This blog is written by Shivi Dhawan, a second-year student of PSIT College of law; Manya Harit, a third-year student Chaudhary Charan Singh University, Meerut and Shalini Kaushal, a third- year student of PSIT College of law.
BACKGROUND
A conduct, demeanor, or look meant to prevent impropriety or indecency is one definition of modesty. This addresses the Islamic norm of hiding girls and women from public and male gaze. Islam has risen to become one of the major world faiths since the seventh century. Some local veiling practices were integrated, while others were affected, as it expanded from the Middle East to Saharan and sub-Saharan Africa, Central Asia, and many different communities around the Arabian Sea. The issue of women wearing headscarves is not fully addressed in Muslim religious teachings. There are several references to Mohammed’s wives wearing veils in the Quran and Hadith (sayings attributed to the prophet Mohammed), although it is controversial whether these references pertain to just the Prophet’s wives or to all Muslim women.
THE CONTROVERSY
The Hijab ban controversy has been the hot button topic of the country for the past few months. The strife between Article 14 and Article 25 commenced with the violation of people’s right to expression and right to religion being in question. By now no one is unaccustomed to the ongoing conflict because of the same.
The matter escalated when a group of girls from a government PU College in Udupi District of Karnataka were obstructed from attending classes since they wore a Hijab, a head scarf, claiming that the clothing was not part of their uniform.
Besides Udupi, at least two more colleges in the State had barred students for wearing a Hijab. Inevitably, the students questioned the unprecedented change contending that there were no such rules mentioned in the college guidelines against the attire. Hence, the change was unacceptable. Consequently, several petitions were filed with regard to same.
On January 31st, a petition was filed by a student named Reshma on behalf of PU College students, in which she sought a declaration to recognise wearing a Hijab as a Fundamental Right under Article 14 and Article 25 as it is an essential religious practice. The petition was argued by Senior Adv. Ravivarma Kumar and other lawyers where he asserted that singling out the petitioner solely on the basis of wearing hijab is averse to “Constitutional Morality”.
Another petition was filed by a student from Kundapura, a town in Karnataka, on February 4th, seeking directive to permit wearing hijab to Muslim students followed by another petition filed by another two students from another college. The petitioners were represented by Senior Adv. Davadatt Kamat and Senior Adv. Yusuf Muchhala respectively.
THE APEX COURT’S TAKE ON THE SAME
After the petitions filed in the High Court, hearings began on January 8. After the initial arguments being heard by the judge, it was concluded if Hijab is an essential religious practice and in respect to same, state interference is incomprehensible and publicly important the case was, it was passed to a larger bench.
Furthermore, lawyer representing the Students from PU college Senior Adv. Devadatt Kamat argued that as per Article 25(1) of Indian Constitution, Wearing Hijab is essential religious practice. Also, speaking of Public Order, it does absolutely no harm in respect to same as neither it is abhorrent by itself nor it causes disturbance of any sort to society. He also accentuated on the fact that opting for Hijab Ban is a clear indication to selectively target Muslim students, thereby violating Article 15(1) of Indian Constitution that says “State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
The lawyers spared no efforts but the decision of the court of the court was despicable.
Karnataka government issued an order stating no exception can be made for wearing of hijab and the school uniform must be worn compulsorily.
No sooner had the government issued the order, High Court issued an interim order on March 10 that restrained all students from wearing any form of religious attire applying to all educational institutions across Karnataka. Moreover, there were instances of teachers being obstructed from entering the building and were instructed to remove their Hijab and Burqa outside the school gates.
The Court, on March 15, delivered its final verdict upholding the ban on Hijab. It ruled:
Hijab is not an essential practice in Islam.
SUPREME COURT (STATUS)
After the Muslim girls refused to appear for the 10th and 12th board examinations, the advocates urged the Hon’ble Supreme Court of India to hear the case in order to prevent the students from academic loss which in turn was rejected by CJI, N.V. Ramana stating the examinations and the matter hold no inter-relevance. Hence, the matter should not be sensationalized. The Chief Justice on April 26th, came up with a positive response and assured that the pleas challenging the High Court Verdict would be listed for hearing in the Supreme Court.
In October, Justice Hemant Gupta and Justice Sudhanshu Dhulia ended up giving a split decision where the former upheld the Karnataka High Court ruling and the latter found it ruled in error.
Accordingly, the judges made a request to the Chief Justice to refer the matter to a larger bench.
ISSUES
It is a delight to see girls standing up for each other as they face an uncertain future as religious discussion overtakes educational institutions in Karnataka and other parts of India. When a Muslim student was denied permission to attend courses while wearing a headscarf, the situation quickly spread to other colleges in the state and nation.
“Jai Shri Ram,” yelled young lads and girls draped in saffron shawls. Muslim girls begged to be permitted in the classes because of the upcoming test. The entire incident demonstrated the irony of the catchphrase “Beti Bachao, Beti Padhao,” as Betis were prohibited from attending school.
A photo of female students in Udupi holding hands, hijab or no hijab, was recently published by Deccan Herald. “Students from diverse communities go together to the Government PU College in Udupi as it reopened on Wednesday,” the caption stated.
The district’s colleges remained closed for the longest due to the growing student opposition to wearing the hijab and what defines a uniform. Even Section 144 was implemented to prevent protests from happening close to educational establishments.
The Karnataka High Court issued an interim order directing the pupils to adhere to the prescribed state uniform and refrain from donning any religious garb. The Supreme Court of India was then asked to hear the case urgently, but Chief Justice of India NV Ramana declined to do so.
Students Unity Karnataka: Do Not Let the Communal Forces Snap The Unity Of Students
According to the youngsters, wearing a hijab in colleges and schools was never a problem. They were permitted to wear it on campus even though they were instructed to remove it in class. Why, therefore, are these young ladies suddenly prevented from making their choice?
As a result of the change made by the Karnataka Education Ministry, pupils are no longer permitted to wear hijabs in class. Uniforms must be “proper.” Hijab was seen to be religious attire and was perceived as being in opposition to the secular ethos of educational institutions.
Many others raised the question of why now since wearing a hijab was never a problem when they were growing up or attending schools, so why is it now? The conflict has also caused division in India’s political scene. A move like this is pointless, according to one part, but it is justified by the other.
But have there ever been no religious symbols in our schools? There are numerous examples of this, including prayers, Saraswati puja celebrations, and even the education ministry parade for the Republic Day parade in 2022 that had a student dressed in Brahmin, an upper-caste priest community, clothes. Then, are these not opposed to secular forces? Why does hijab cause such severe eye discomfort? Furthermore, does secularism not advocate tolerance and respect for the beliefs of others?
These are a few of the arguments that have dominated an area where pupils must learn, develop, and strive. This social gap in classrooms is terrible because it destroys the tolerance and sharing of tiffin boxes that existed there for decades. How long can we put up with politics interfering with girls’ education?
In conclusion, the image of harmony among female students and students in general is a constructive and upbeat attitude that one may harbor given the political atmosphere at the moment. These students represent the tolerance and respect that India ought to embody in the future; not raucous behavior and pointless harassing.
Individuals have the freedom to express their opinions openly according to the fundamental right to free speech. Find out what rights are granted to us by looking at the clearer explanation of the freedom of speech and expression under Article 19 as provided by the Indian constitution.
Part III of the Indian Constitution enshrines each and every fundamental right-
Every citizen has the right to freely express his opinions, criticisms, perceptions, and convictions by speech, writing, printing, or any other methods, according to the concept of freedom of speech and expression.
The highest court ruled that the preservation of certain rights related to freedom of speech and other things is what constitutes the liberty of speech and expression.
All citizens shall have
- The right to freedom of speech and expression, the ability to peacefully congregate without the use of force, the ability to organize groups or unions, and the freedom to move around India’s territory.
- To live and establish oneself anywhere on Indian territory; deleted
- To carry out any occupation, trade, or business, or to practice any vocation
- The freedom of speech and expression is guaranteed by Article 19 in the Indian Constitution, with the following reasonable restrictions: It must not jeopardize national security, good relations with foreign countries, public order, morality, or be related to judicial contempt, defamation, or incitement to crime.
Nothing in the aforementioned sub-clause shall affect the operation of any current regulation insofar as it relates to, or prevents the country from enacting any regulation enforcing, in the interests of the majority, reasonable restrictions on the exercise of the right granted by the aforementioned sub-clause. More specifically, nothing in the aforementioned sub-clause shall prevent the country from enacting any regulation enforcing, within the interests of the majority, reasonable restrictions.
The Indian Constitution guarantees religious freedom. However, out of all the accessible fundamental rights in Part III thereof, it is by far the least strong. Its greatest weakness is that it challenges every other fundamental right, as well as the claw-back provisions that are a component of every fundamental right guaranteed by the Indian Constitution.
As a result, if there is a contradiction between the freedom of religion guaranteed by Article 25 and the equality guaranteed by Article 14, the latter is likely to win out. Additionally, Article 21 takes precedence over Article 25 in any situation where they are contradicting. Additionally, the state has the authority to restrict freedom of religion for reasons of morality, public health, and public order. Therefore, a state is perfectly within its rights to modify the freedom of religion on the grounds outlined above.
The right to practice or publicly exhibit one’s religion is also included in the concept of religious freedom. According to the supreme court, religious belief at its core is what is protected by the freedom of religion clause, and everything that is not at its heart is not protected by Article 25.
Now let’s look at whether the hijab is the foundation of Islam and whether the Karnataka government is breaching a Muslim’s fundamental right by restricting it in schools and colleges.
DIRECT AND INDIRECT INFRINGEMENT ON RELIGIOUS FREEDOM
If the state had forced Muslim students to wear the hijab against their will, presuming that doing so is required by Article 25 of the Constitution, there would have been a clear violation of their fundamental rights. Due to the general nature of the rule in question, an indirect violation occurs when it unintentionally violates a group of people’s fundamental rights. Examples of such rules include the policy of neutrality.
The issue at hand is whether there has ever been an indirect infringement of fundamental rights based on the concept of neutrality. The necessity that the policy treats everyone equally in order to establish a neutrality of cost device is essential for such policies to be legal. The restrictions that do not directly restrict the carrying of any religious symbols on the ground of neutrality have been approved by the European Court of Justice. As previously said, the simplest test is that the regulation should no longer specifically target any one group within society.
India’s Constitution regarding the hijab
The preamble gives everyone the freedom to practice and spread their faith. All people are completely free as long as their faith is not interfered with or diminished. The freedom to practice one’s religion is a fundamental right guaranteed by the Indian Constitution, subject to some restrictions.
According to Article 25(1) of the constitution, people have the freedom to freely profess, teach, and spread their religious beliefs. But this too is not constant, just as some other fundamental elements. It may be governed on the basis of various fundamental principles.
The supreme court has consistently ruled that fundamental religious practices are totally protected by the constitution. Courts will consider whether or not a practice is essential or necessary for faith before providing any safeguards, after reading spiritual writings and contacting experts and religious leaders. In addition, courts shall consider whether the restrictive measure in question is reasonable when considering the legality of any restriction placed on fundamental rights in accordance with Article 14. (Right to Equality).
The Kerala High Court ruled that students may take the examination while wearing the hijab because it has become a necessary practice of Islamic law even in 2016, when the All India Institutes of Medical Sciences (AIIMS) prohibited candidates wearing the hijab from appearing inside the front examination.
The Indian Constitution’s freedom of expression is covered by Article 19(1)(A).
Nothing in subclause (a) of clause (1) shall affect the operation of any existing law or prevent the nation from enacting regulations, except to the extent that such regulations impose reasonable restrictions on the exercise of the right conferred by the said subclause in the interests of India’s sovereignty and integrity, the security of the nation, friendly relations with foreign States, public order, and decency.
In accordance with Article 25’s rules on public order, morality, and health as well as the provisions of this section that go against them, all people have an equal right to freedom of conscience and the freedom to profess, prepare, and disseminate their beliefs.
WHY IS THERE NO COMPARISON BETWEEN INDIAN AND IRANIAN “HIJAB” SITUATIONS
People have commented that women should be free to make their own decisions, whether or not they wear a hijab, in light of the comparison between India and Iran’s rallies. In India, discussions about the ongoing protests in Iran have recalled what occurred in January in Karnataka, when some female students of a junior college were denied entry on the basis that their hijab contravened the college’s dress code. This remark may not accurately reflect Iran’s circumstances, albeit being noteworthy. In contrast to the Karnataka hijab dispute, Iran’s criticism extends beyond the hijab and religion. This is fairly obvious given the current wrath on Iranian streets. Extreme protests are occurring more frequently than before. Women are shaving their heads and destroying their hijabs in public, actions that could result in protracted prison terms, public floggings, or exorbitant fines. People are mounting government structures to take down posters of Ayatollah Ruhollah Khomeini and Ali Khamenei, the Islamic Republic’s Supreme Leader, off them. Due to a combination of public unhappiness with the economy and Iran’s waning religiosity, protests are still ongoing. Individuals who hold positions of control define what “freedom” and “safety” are. These widespread criteria dictate who we idolize, burn at the stake, and in whose name we hold public demonstrations. The last thing Muslim women want is for the West to “save” them despite the countless wars they face around the globe. By signing checks for their salary and making donations to local NGOs, they are already doing more than enough. Muslim women are capable of winning their own battles. One thing to bear in mind is that these battles aren’t all black and white, despite what one might prefer for simplicity’s sake.
CONCLUSION
Notwithstanding the lawyers representing the public spared no efforts yet the contradictory view of Hon’ble Supreme Court has widened the societal divide. This happens to be a case of indirect violation of law. Wearing clothing of any sort is at the discretion of the woman which is contradictory in present case scenario.
In the current political climate, the Karnataka government’s requirement of either a prescribed uniform or any attire “in the interest of unity, equality, and public order” was perceived as a majoritarian assertion disguising the enforcement of secular norms, equality, and discipline in educational institutions.
It would not be in the best interest of the nation for a ruling to validate this exclusive approach to education and a strategy that may deny Muslim women opportunities.
The course should provide a reasonable accommodation as long as the hijab or any other religious or nonreligious clothing does not detract from the uniform.
