While leaving no scope for ambiguity of any kind on hijab, the Karnataka High Court on 15 March, 2022 in a learned, laudable, landmark and latest judgment titled Resham v. State of Karnataka and Others with connected cases cited in 2022 LiveLaw (Kar) 75 while upholding the ban on wearing hijab in government colleges, observed unequivocally that prescription of a uniform for all students will promote a sense of “constitutional secularism” within the institution. The Court observed that, “The school regulations prescribing dress code for all the students as one homogenous class, serve constitutional secularism”. A Full Bench of the Karnataka High Court comprising of Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi held that wearing of hijab is not a part of ‘Essential Religious Practice’ in Islamic faith and thus, is not protected under Article 25 of the Constitution. So it cannot be lightly dismissed what the Full Bench has held.
To start with, this judgment by a Full Court Bench of Karnataka High Court sets the ball rolling by first and foremost putting forth that, “This judgment, we desire to begin with what Sara Slininger from Centralia, Illinois concluded her well researched article “VEILED WOMEN: HIJAB, RELIGION, AND CULTURAL PRACTICE-2013”:
“The hijab’s history…is a complex one, influenced by the intersection of religion and culture over time. While some women no doubt veil themselves because of pressure put on them by society, others do so by choice for many reasons. The veil appears on the surface to be a simple thing. That simplicity is deceiving, as the hijab represents the beliefs and practices of those who wear it or choose not to, and the understandings and misunderstandings of those who observe it being worn. Its complexity lies behind the veil.”
Three of these cases namely W.P.No.2347/2022, W.P.No.2146/2022 & W.P.No.2880/2022, were referred by one of us (Krishna S Dixit J.) vide order dated 09.02.2022 to consider if a larger Bench could be constituted to hear them. The Reference Order inter alia observed:
“All these matters essentially relate to proscription of hijab (headscarf) while prescribing the uniform for students who profess Islamic faith…The recent Government Order dated 05.02.2022 which arguably facilitates enforcement of this rule is also put in challenge. Whether wearing of hijab is a part of essential religious practice in Islam, is the jugular vein of all these matters…The said question along with other needs to be answered in the light of constitutional guarantees availing to the religious minorities. This Court after hearing the matter for some time is of a considered opinion that regard being had to enormous public importance of the questions involved, the batch of these cases may be heard by a Larger Bench, if Hon’ble the Chief Justice so decides in discretion…In the above circumstances, the Registry is directed to place the papers immediately at the hands of Hon’ble the Chief Justice for consideration…”
Accordingly, this Special Bench came to be constituted the very same day vide Notification dated 09.02.2022 to hear these petitions, to which other companion cases too joined.”
What is next, the Bench then narrates:
“ i) I. PETITIONERS’ GRIEVANCES & PRAYERS BRIEFLY STATED:
(i) In Writ Petition No. 2347/2022, filed by a petitioner – girl student on 31.01.2022, the 1st, 3rd & 4th respondents happen to be the State Government & its officials, and the 2nd respondent happens to be the Government Pre–University College for Girls, Udupi. 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.
(ii) In Writ Petition No. 2146/2022 filed by a petitioner–girl student on 29.01.2022, the 1st, 3rd & 4th respondents happen to be the State Government & its officials and the 2nd respondent happens to be the Government Pre – University College for Girls, Udupi. The prayer column has the following script:
“1. Issue the WRIT OF MANDAMUS and order to respondent no 1 and 2 to initiate enquiry against the Respondent 5 college and Respondent no 6 i.e. Principal for violating instruction enumerated under Chapter 6 heading of “Important information” of Guidelines of PU Department for academic year of 2021-22 same at ANNEXURE J for maintaining uniform in the PU college.,
2. Issue WRIT OF MANDAMUS to Respondent no 3 conduct enquiry against the Respondent no 6 to 14 for their Hostile approach towards the petitioners students.,
3. Issue WRIT OF QUO WARRANTO against the Respondent no 15 and 16 under which authority and law they interfering in the administration of Respondent no 5 school and promoting their political agenda. And,
4. DECLARE that the status quo referred in the letter dated 25/01/2022 at ANNEXURE H is with the consonance to the Department guidelines for the academic year 2021-22 same at ANNEXURE J…”
(iii) In Writ Petition Nos.2880/2022, 3038/2022 & 4309/2022, petitioner – girl students seek to lay a challenge to the Government Order dated 05.02.2022. This order purportedly issued under section 133 read with sections 7(2) & (5) of the Karnataka Education Act, 1983 (hereafter ‘1983 Act’) provides that, the students should compulsorily adhere to the dress code/uniform as follows:
a. in government schools, as prescribed by the government;
b. in private schools, as prescribed by the school management;
c. in Pre–University colleges that come within the jurisdiction of the Department of the Pre– University Education, as prescribed by the College Development Committee or College Supervision Committee; and
d. wherever no dress code is prescribed, such attire that would accord with ‘equality & integrity’ and would not disrupt the ‘public order’.
(iv) In Writ Petition No.3424/2022 (GM-RES-PIL), filed on 14.02.2022 (when hearing of other cases was half way through), petitioner – Dr.Vinod Kulkarni happens to be a consulting neuro – psychiatrist, advocate & social activist. The 1st and 2nd respondents happen to be the Central Government and the 3rd respondent happens to be the State Government. The first prayer is for a direction to the respondents “to declare that all the students of various schools and colleges in Karnataka and in the country shall attend their institutions by sporting the stipulated uniform” (sic). Second prayer reads “To permit Female Muslim students to sport Hijab provided they wear the stipulated school uniform also” (sic).
(v) In Writ Petition No.4338/2022 (GM-RESPIL), filed on 25.02.2022 (when hearing of other cases was half way through), one Mr. Ghanasham Upadhyay is the petitioner. The 1st respondent is the Central Government, 2nd & 3rd respondents happen to be the State Government & its Principal Secretary, Department of Primary & Secondary Education; the 4th & 5th respondents happen to be the Central Bureau of Investigation and National Investigation Agency. The gist of the lengthy and inarticulate prayers are that the Central Bureau of Investigation/National Investigation Agency or such other investigating agency should make a thorough investigation in the nationwide agitation after the issuance of the Government Order dated 05.02.2022 to ascertain the involvement of radical organizations such as Popular Front of India, Students Islamic Organization of India, Campus Front of India and Jamaat-e-Islami; to hold and declare that wearing of hijab, burqa or such “other costumes by male or female Muslims and that sporting beard is not an integral part of essential religious practice of Islam” and therefore, prescription of dress code is permissible. There are other incoherent and inapplicable prayers that do not merit mentioning here.
(vi) The State and its officials are represented by the learned Advocate General. The respondent–Colleges and other respondents are represented by their respective advocates. The State has filed the Statement of Objections (this is adopted in all other matters) on 10.02.2022; other respondents have filed their Statements of Objections, as well. Some petitioners have filed their Rejoinder to the Statement of Objections. The respondents resist the Writ Petitions making submission in justification of the impugned order.”
Quite significantly, the Bench then states in Part XII that, “XII. PLEADINGS AND PROOF AS TO ESSENTIAL RELIGIOUS PRACTICE:
(i) In order to establish their case, claimants have to plead and prove that wearing of hijab is a religious requirement and it is a part of ‘essential religious practice’ in Islam in the light of a catena of decision of the Apex Court that ultimately ended with INDIAN YOUNG LAWYERS ASSOCIATION. The same has already been summarized by us above. All these belong to the domain of facts. In NARAYANA DEEKSHITHULU, it is said: “…What are essential parts of religion or religious belief or matters of religion and religious practice is essentially a question of fact to be considered in the context in which the question has arisen and the evidence factual or legislative or historic-presented in that context is required to be considered and a decision reached…” The claimants have to plead these facts and produce requisite material to prove the same. The respondents are more than justified in contending that the Writ Petitions lack the essential averments and that the petitioners have not loaded to the record the evidentiary material to prove their case. The material before us is extremely meager and it is surprising that on a matter of this significance, petition averments should be as vague as can be. We have no affidavit before us sworn to by any Maulana explaining the implications of the suras quoted by the petitioners’ side. Pleadings of the petitioners are not much different from those in MOHD. HANIF QUARESHI, supra which the Apex Court had criticized. Since how long all the petitioners have been wearing hijab is not specifically pleaded. The plea with regard to wearing of hijab before they joined this institution is militantly absent. No explanation is offered for giving an undertaking at the time of admission to the course that they would abide by school discipline. The Apex Court in INDIAN YOUNG LAWYERS ASSOCIATION, supra, has stated that matters that are essential to religious faith or belief; have to be adjudged on the evidence borne out by record. 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. This apart, it can hardly be argued that hijab being a matter of attire, can be justifiably treated as fundamental to Islamic faith. It is not that if the alleged practice of wearing hijab is not adhered to, those not wearing hijab become the sinners, Islam loses its glory and it ceases to be a religion. Petitioners have miserably failed to meet the threshold requirement of pleadings and proof as to wearing hijab is an inviolable religious practice in Islam and much less a part of ‘essential religious practice’.”
Briefly stated, the Bench held that, “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.”
Now coming to Part XIII, the Bench states clearly and here we will discuss only most relevant observations that, “XIII. AS TO SCHOOL DISCIPLINE & UNIFORM AND POWER TO PRESCRIBE THE SAME:
We are confronted with the question whether there is power to prescribe dress code in educational institutions. This is because of passionate submissions of the petitioners that there is absolutely no such power in the scheme of 1983 Act or the Rules promulgated thereunder. The idea of schooling is incomplete without teachers, taught and the dress code. Collectively they make a singularity. No reasonable mind can imagine a school without uniform. After all, the concept of school uniform is not of a nascent origin. It is not that, Moghuls or Britishers brought it here for the first time. It has been there since the ancient gurukul days.
Section 133(2) of the 1983 Act vests power in the government to give direction to any educational institution for carrying out the purposes of the Act or to give effect to any of the provisions of the Act or the Rules, and that the institution be it governmental, State aided or privately managed, is bound to obey the same. This section coupled with section 7(2) clothes the government with power inter alia to prescribe or caused to be prescribed school uniform. The government vide Circular dated 31.1.2014 accordingly has issued a direction. Significantly, this is not put in challenge and we are not called upon to adjudge its validity, although some submissions were made de hors the pleadings that to the extent the Circular includes the local Member of the Legislative Assembly and his nominee respectively as the President and Vice President of the College Betterment (Development) Committee, it is vulnerable for challenge. In furtherance thereof, it has also issued a Government Order dated 5.2.2022. We shall be discussing more about the said Circular and the Order, a bit later. Suffice it to say now that the contention as to absence of power to prescribe dress code in schools is liable to be rejected.”
Now coming to Part XIV, the Bench holds that, “XIV. AS TO PRESCRIPTION OF SCHOOL UNIFORM TO THE EXCLUSION OF HIJAB IF VIOLATES ARTICLES, 14, 15, 19(1)(a) & 21:
(i) There has been a overwhelming juridical opinion in all advanced countries that in accord with the general principle, the school authorities may make reasonable regulations governing the conduct of pupils under their control and that they may prescribe the kind of dress to be worn by students or make reasonable regulations as to their personal appearance, as well. In MILLER vs. GILLS (D.C. III) 315 F SUP. 94, a rule that the students of an agricultural high school should wear a khaki uniform when in attendance at the class and whilst visiting public places within 5 miles of the school is not ultra vires, unreasonable, and void. Similarly, in CHRISTMAS vs. EL RENO BOARD OF EDUCATION (D.C. Okla.) 313 F SUPP. 618, a regulation prohibiting male students who wore hair over their eyes, ears or collars from participating in a graduation diploma ceremony, which had no effect on the student’s actual graduation from high school, so that no educational rights were denied, has been held valid. It is also true that our Constitution protects the rights of school children too against unreasonable regulations. However, the prescription of dress code for the students that too within the four walls of the class room as distinguished from rest of the school premises does not offend constitutionally protected category of rights, when they are ‘religion-neutral’ and ‘universally applicable’ to all the students. This view gains support from Justice Scalia’s decision in EMPLOYMENT DIVISION vs. SMITH 494 U.S. 872 (1990). School uniforms promote harmony & spirit of common brotherhood transcending religious or sectional diversities. This apart, it is impossible to instill the scientific temperament which our Constitution prescribes as a fundamental duty vide Article 51A(h) into the young minds so long as any propositions such as wearing of hijab or bhagwa are regarded as religiously sacrosanct and therefore, not open to question. They inculcate secular values amongst the students in their impressionable & formative years.
(ii) The school regulations prescribing dress code for all the students as one homogenous class, serve constitutional secularism. It is relevant to quote the observations of Chief Justice Venkatachalaiah, in ISMAIL FARUQUI, supra: “The concept of secularism is one facet of the right to equality woven as the central golden thread in the fabric depicting the pattern of the scheme in our Constitution… In a pluralist, secular polity law is perhaps the greatest integrating force. Secularism is more than a passive…It is a positive concept of equal treatment of all religions. What is material is that it is a constitutional goal and a Basic Feature of the Constitution.”
It is pertinent to mention that the preamble to the 1983 Act appreciably states the statutory object being “fostering the harmonious development of the mental and physical faculties of students and cultivating a scientific and secular outlook through education.” This also accords with the Fundamental Duty constitutionally prescribed under Article 51A(e) in the same language, as already mentioned above. Petitioners’ argument that ‘the goal of education is to promote plurality, not promote uniformity or homogeneity, but heterogeneity’ and therefore, prescription of student uniform offends the constitutional spirit and ideal, is thoroughly misconceived.
In conclusion, this is a very detailed judgment due to which it is just not possible to elaborate on each and every aspect. But the crux of this notable judgment is that as stated in this judgment itself that, “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 Bench also made it clear as stated that, “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.” Finally, the Bench concluded by holding that, “In the above circumstances, all these petitions being devoid of merits, are liable to be and accordingly are dismissed. In view of dismissal of these Writ Petitions, all pending applications pale into insignificance and are accordingly, disposed off.”
No doubt, what the Full Bench of the Karnataka High Court has held has to be accorded due respect by one and all. But this does not mean that all doors are closed for those girls who are vehemently arguing for wearing hijab. They have the legal right to approach the Apex Court which I am certain they will do. But for the moment they have to contend with what the Karnataka High Court has held unless and until it is overturned by the Apex Court. It cannot be denied that the Karnataka High Court Full Bench has taken great pains to dwell on each and every aspect thread bare which cannot be overlooked even by the Apex Court and even I myself am overwhelmed on reading it! Of course, we have to keep our fingers crossed on whether these girls will approach the Apex Court or not and what the Apex Court will rule if they do indeed approach! Right now, they have to certainly adhere to what has been held by the Full Bench of Karnataka High Court so lucidly, elegantly and effectively!
Sanjeev Sirohi
