Religion v/s Rules | Karnataka Hijab Row

While the general idea is that religious expression is a basic human right and that there should be no reservations to it, it is also known that there are certain matters in which religion must be regarded secondary to the interests of national security or individual safety.

Introduction

In many religions, the use of special clothing or jewellery such as the Hindu Janeu or the Islamic hijab are not always worn out of choice, rather under ritual obligation. They tie in closely with the idea of providing one a sense of spiritual identity. Assuming that wearing religious attire is associated with manifesting core religious beliefs, the question is whether a state can interfere with this “freedom of expression” at all and if yes, then to what extent? In a country like ours, whose constitution follows secularism, the debates surrounding religious attire have drawn a lot of attention in the recent past and still dominates present debates.

One recent incident that sparked these discussions is when six female students claimed to have been denied entry into classrooms while wearing head scarfs. Since then, the hijab row in Karnataka has been raging with protests and counter demonstrations by students. While the general idea is that religious expression is a basic human right and that there should be no reservations to it, it is also known that there are certain matters in which religion must be regarded secondary to the interests of national security or individual safety. The essay shall discuss the Karnataka High Court’s verdict on the Hijab row in Karnataka and why it is a right step in the direction of a complex issue.

Background Information

The trajectory of the Hijab Row can be traced back to January 1, 2022 when the students held a press conference and said that permission was sought but college authorities refused to let them enter the classroom with their faces covered. This issue gradually snowballed into a statewide issue when similar protests emerged from nearby towns. It started making national headlines when the matter reached the Karnataka High Court and intensified when Hindu students wore saffron scarves in counter protest. Most news surrounding the hijab row skip the developments that took place between January 1 and January 31, 2022 as rhetorics of communalism and discrimination began to dominate the discourse. The issue thereon became about religion instead of uniform.

At this point, it would be essential to understand the notion of Hijab and what it means in Islam.

In the Quran, the term hijab refers to a partition or curtain in the literal or metaphorical sense. It is a kind of screen that partitions an individual from another. It is important to clarify that only the wives of the prophet had to enforce this type of hijab. Their hijabs were more layered due to the fact that they were his wives. They had to be covered not just in their garments, but also the space in which they occupied. Hijab is a scarf or clothing worn by Muslim women to cover their hair in order to maintain modesty and privacy from unrelated males either in public or at home. A verse from the Quran reads:

O prophet, tell your wives and your daughters and the women of the believers to bring down over themselves [part] of their outer garments. That is more suitable that they will be recognised and not be abused. and ever is Allah forgiving and merciful.”

-Surah al-ahzab, Verse 59

Analysis of Data and Arguments

The Karnataka High Court headed by Justice Ritu Raj Awasthi rightly held their verdict about the right to freedom of religion not being absolute and brought the debate back to uniformity and dress code. On February 5, it rightly passed an order exercising its powers under Section 133(2) of the Karnataka Education Act, 1983. Referring to the 2013 directive of this provision, it specifies that a headscarf is not part of the uniform. A large part of the issue gets shadowed as mainstream media addresses it as ‘Hijab ban in educational institutions.’ This argument further incited allegations of the girls’ right to education being denied.

“A girl student not wearing the head-scarf or head covering studying in the exclusive girls section cannot be said to in any manner acting inconsistent with Verse 31 or violating any injunction provided in Holy Quran,” the court replied.

Senior advocate Yusuf Muchhala who was on the bench supporting protests against the Hijab ban, argued that Article 25 (1) of the Constitution specifically recognises "freedom of conscience," as being distinct from the "right to profess, practise and propagate religion." He noted that some people might not believe in any religion, or might believe in all of them – but freedom of conscience protects these individual beliefs.

However, it becomes imperative to note that entry to the college campus was not denied with a hijab. The code of conduct only mentioned that wearing the headscarf is not allowed inside classrooms. Allegations of the university denying them education falls redundant as the ban is only a part of the dress code, which all institutions (educational and others) have. Not complying to it becomes an individual choice.

As a counterargument, the petitioners then argued that a student wearing a hijab/headscarf and attending class ‘silently’ cannot be said to be a practice that disturbs “public order” as it is only a profession of their faith. They have also argued that the ban on headscarves violates the fundamental right to equality since other religious markers, such as a turban worn by a Sikh, have neither been explicitly mentioned nor prohibited in the orders passed.

Senior advocate Dushyant Dave said the controversy over hijab in Karnataka was a "political issue being deliberately raised during elections". "The government has no right to interfere in clothing worn by a person. It is the personal freedom and choice of each person. Even if there is a dress Code, the Hijab or headscarf can be of the same colour and cloth as the rest of the uniform, so as to not violate the dress code," said Dave. Senior advocate Vikas Singh also said that the ban violated the rights to practice and profess religion enshrined under article 25 and 29 of the Constitution. "The argument of restrictions for the sake of Public order cannot arise here. Public order has to be defined in the light of causing offence or public disorder. How is that affected by a headscarf? Courts have held that carrying a kirpan for Sikhs and covering the head for Muslims is an essential religious practice," said Singh.

However, it is illogical to argue that since the wearing of the hijab does not affect anyone, it should be permitted. After all, this undermines the purpose of a “uniform” whose underlying intent is to ensure that religious differences do not stand out in a classroom to the extent possible. Furthermore, the rationale to prescribe dress-code in institutions is to avoid malpractices in examinations and not to target any one community.

Article 25 of the Constitution, currently being extensively touted to justify hijab, states that freedom of religion is “subject to public order, morality and health and to the other provisions”. In 2015, two petitions were filed before the Kerala High Court challenging the dress code for All India Pre-Medical Entrance. Students were asked to wear “light clothes with half sleeves not having big buttons, brooch/badge, flower, etc with salwar/trousers” and “slippers and not shoes”.

The Central Board of School Education (CBSE) argued that the rule was to ensure that candidates do not use unfair methods by concealing objects within clothes. The Kerala HC asked the CBSE to put in place extra measures for checking students who “intend to wear a dress according to their religious custom”. The court rightly ruled that if the invigilator requires the headscarf or the full sleeve garments to be removed and examined, the petitioners shall also subject themselves to that. This is an example of cases involving restrictions placed on the freedom of religion to ensure a fair examination.

Thus, clearly, a legal case can be made against the insistence of the girls to wear hijab against the Udipi school’s dress code. Even certain Muslim-majority nations like have outlawed the hijab and burqa in varying degrees. Egypt and Syria have banned the face veil in universities.

Another argument that questions the credibility of the petitioners claim can be found by seeing the chronology of events. “The institution did not have any rule on Hijab-wearing as such and since no one used to wear it to the classroom in the last 35 years. The students who came with the demand had the backing of outside forces,” Rudre Gowda, the principal of Udupi college said.

Although the phrase ‘outside forces’ can be misinterpreted easily, digging into the backgrounds of the petitioners and the timeline of events will give context to it. On January 1, when the six girls first pointed their problem openly, they had attended a press conference by the Campus Front of India (CFI). Just four days before, they had been denied permission by the principal to wear hijab to classrooms.

The CFI is the student wing of an Islamist organization, the Popular Front of India, that intends to empower and organize marginalized students. It was launched at New Delhi on 7 November. Muhammad Yusuf from Tamil Nadu was the founder president.

Speculations are on the rise whether it is this press conference that incited the girls to make the issue larger. There is no information about what happened during that press conference and what was the nature of discussion. However, something worth noting is that in 2019, Rajasthan chief minister Ashok Gehlot had some strong ideas to express about the tradition of ghoonghat among some Hindu women: “Even today, village women are imprisoned by ghoonghat. What right does society have to treat women like this? Till the veil exists, women cannot progress.” Just over two years later, he along with party leader Rahul Gandhi hasn’t shied away from supporting the protest against the school’s decision to disallow hijab rather, implied that any institution’s decision to ban the hijab is a setback to India’s future. Their stand not only compares two non-equivalents but also stems from political agendas of appeasing minorities.

Evidence

The apex court too has made its stance very clear on similar conflicts. On 15 December 2016, the Supreme Court, while rejecting the demand of Mohammed Zubair, who was serving in the Air Force, to have a beard on the basis of religious beliefs, had said: “The regulations and policies in regard to personal appearance are not intended to discriminate against religious beliefs nor do they have the effect of doing so. Their object and purpose is to ensure uniformity, cohesiveness, discipline and order which are indispensable to the Air Force, as indeed to every armed force of the Union.”

Additionally, a similar argument relating to "uniformity" was before the European Court of Human Rights in the cases of veil bans in France and Belgium. In both cases, the ECHR upheld the ban on the veils that cover the full face and head.

Conclusion

The High Court verdict stands justified in this issue of an unnecessarily politicised issue of Hijab ban. While counter arguments surround violation of religious freedom and discrimination, it is important to realise that no freedom is absolute and justified restrictions have and always be made in fundamental rights in interest of public order. All religious exceptions are made after thoroughly studying the religious texts and norms by virtue of the notions of secularity that the Indian constitution follows. Unlike western countries, Indian secularism doesn’t separate ‘Church from State’ but reasonable restrictions have always been pronounced by the apex and High courts to maintain harmony in public spaces.