| Headnote |
Constitution of India, 1950: Arts.14, 19 (1), 21 and 25 – Right to wear Hijab in Educational Institution – Freedom of Religion – Essential Religious Practice (ERP) – Right to Choice – On 03.02.2022, petitioners, students of Government Pre-University College in Udupi were stopped at their college gate and told to take off their Hijab before entering the college – As they refused to take off Hijab, they were denied entry in college by the administration – On 05.02.2022, Government Order (G.O.) was issued regarding ‘a dress code for student of all schools and colleges of the state’ under the Karnataka Education Act, 1983 – The order mandated that the uniform prescribed by the College Development Committee or the Board of Management should be worn – Since Hijab was not made part of the ‘uniform’, the petitioners were denied entry in their college – Petitioners challenged the G.O. before High Court – High Court held that wearing of Hijab by Muslim women does not form a part of ERP in Islamic faith and that prescription of School uniform places only a reasonable restriction which is constitutionally permissible and cannot be objected to by the students – Hence instant appeal – Per Hemant Gupta, J.: The constitution of the College Development Committee is not in conflict with any of the provisions of the Act, 1983 – The said G. O. does not run contrary to any of the provisions of the Act and the rules framed there under – The executive was well within its jurisdiction to ensure that the students come in the uniform prescribed by the College Development Committee – The object of the G.O. was to ensure that there is parity amongst the students in terms of uniform – the purpose was only to promote uniformity and encourage a secular environment in the schools, which is in tune with the right guaranteed under Art.14 – Art.25(2)(a) gives primacy to laws made by competent legislature for regulation of secular aspects and Art.25(2)(b) gives primacy to “social welfare” and “reform’’ – If a particular practice/ belief/part of any religion is in existence and is found to be subjected to either “social welfare” and “reform”, such right will have to give way to “social welfare” and “reform” – The religious belief cannot be carried to a secular school maintained out of State funds – It is open to the students to carry their faith in a school which permits them to wear Hijab or any other mark – The right under Art.19(1)(a) as a right of expression to dress as per one’s own will, however, is also subject to reasonable restrictions under sub-clause (2) of Art.19 – None of the fundamental rights is absolute, curtailment of the right is permissible by following due procedure which can withstand the test of reasonableness – Students have no right to be in the school in violation of the mandate of the uniform prescribed under the Statute and the Rules – If students choose not to attend classes due to the uniform that has been prescribed, it is a voluntary act of such students and cannot be said to be in violation of Art.29 by the State – G.O. cannot be said to be against the ethic of secularism or to the objective of the Karnataka Education Act, 1983 – Per Sudhanshu Dhulia, J. (Dissenting): The question of ERP was not at all relevant in the determination of the dispute before the Court – Instead of straightaway taking the ERP route, the High Court could have first examined whether the restriction imposed by the school or the G.O on wearing a Hijab, were valid restrictions or whether these restrictions are hit by the Doctrine of Proportionality – The entire exercise done by the High Court, in evaluating the rights of the petitioners only on the touchstone of ERP, was incorrect – If the belief is sincere, and it harms no one else, there can be no justifiable reasons for banning Hijab in a classroom – Asking a pre university schoolgirl to take off her Hijab at her school gate, is an invasion on her privacy and dignity – G.O. and the restrictions on the wearing of hijab, goes against our constitutional value of fraternity and human dignity – Under our Constitutional scheme, wearing a Hijab should be simply a matter of choice – It may or may not be a matter of ERP, but it still is, a matter of conscience, belief, and expression – Asking the girls to take off their Hijab before entering the school gates is clearly violative of Arts.19(1)(a), 21 and 25(1) of the Constitution – There shall be no restriction on the wearing of Hijab anywhere in schools and colleges in Karnataka – Held: In view of the divergent views expressed by the Bench, the matter to be placed before the Chief Justice of India for constitution of an appropriate Bench – Karnataka Education Act, 1983 – ss.133, 145 – Karnataka Educational Institutions (Classification, Regulation and Prescription of Curricula etc.) Rules, 1995 – rr.11, 16. |
