Wearing hijab is not essential religious practice: Karnataka HC upholds Hijab ban in Educational Institutions

Read Order: Resham vs. State of Karnataka & Ors.

Pankaj Bajpai

Bengaluru, March 15, 2022: Upholding the Hijab ban in Educational Institutions, the Karnataka High Court is dismayed as to how all of a sudden that too in the middle of the academic term the issue of hijab has been generated and blown out of proportion by the powers that be, and opined that the college can prescribe uniform to the exclusion of hijab or bhagwa or such other religious symbols, and therefore, the alleged act of seeking adherence to the school discipline & dress code cannot be faltered.

A Larger Bench of Chief Justice Rituraj Awasthi, Justice Krishna S Dixit and Justice J.M Khazi observed that prescription of school dress code to the exclusion of hijab, bhagwa, or any other apparel symbolic of religion can be a step forward in the direction of emancipation and more particularly, to the access to education, which does not rob off the autonomy of women or their right to education inasmuch as they can wear any apparel of their choice outside the classroom.

The observation came pursuant to a reference by Justice Krishna S Dixit vide order dated February 9, 2022 to consider if a larger Bench could be constituted to hear the matters essentially related to proscription of hijab (headscarf) while prescribing the uniform for students who profess Islamic faith. The prayer is for a direction to the respondents to permit the petitioner to wear hijab (head – scarf) in the class room, since wearing it is a part of ‘essential religious practice’ of Islam. In one of the petition, the petitioner – girl students sought to challenge the Government Order dated February 05, 2022 purportedly issued u/s 133 r/w/s 7(2) & (5) of the Karnataka Education Act, 1983 provides that, the students should compulsorily adhere to the dress code/uniform. 

After considering the submissions, the Larger Bench found that the Apex Court in Indira Nehru Gandhi vs. Raj Narain ,(1975) Supp. SCC 1, explained the basic feature of secularism to mean that the State shall have no religion of its own and all persons shall be equally entitled to the freedom of conscience and the right freely to profess, practice and propagate religion.

The constitutional duty to transcend the sectional diversities of religion finds its utterance in section 7(2)(v) & (vi) of the 1983 Act which empowers the State Government to prescribe the curricula that would amongst other inculcate the sense of this duty, added the Bench. 

The High Court refused to invoke the writ of quo warranto for invalidating the Government Order, which per se does not prescribe any uniform but only provides for prescription in a structured way. 

Wearing hijab is not an essential religious practice and school uniform to its exclusion can be prescribed, and the uniform can exclude any other apparel like bhagwa or blue shawl that may have the visible religious overtones, added the Court. 

The Larger Bench said that the object of prescribing uniform will be defeated if there is non-uniformity in the matter of uniforms. 

Highlighting that youth is an impressionable period when identity and opinion begin to crystallize, and young students are able to readily grasp from their immediate environment, differentiating lines of race, region, religion, language, caste, place of birth, etc, the Larger Bench observed that the aim of the regulation is to create a ‘safe space’ where such divisive lines should have no place and the ideals of egalitarianism should be readily apparent to all students alike.

“The schools & institutions have power to prescribe student uniform. There is no legal bar for the School Betterment (Development) Committees to associate with the process of such prescription. However, 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. This is not to cast aspersion on anyone. We are not unaware of the advantages of the schools associating with the elected representatives. They may fetch funds and such other things helping development of institutions. This apart, no law or ruling is brought to our notice that interdicts their induction as the constituent members of such committees”, added the Bench.

Accordingly, the High Court rejected the PIL.