- In a hearing addressing an order issued by the School Education Board of Karnataka (KEB), banning the hijab across educational institutions in Karnataka, the High Court has appealed the student community of the State and the people at large to maintain peace and tranquillity.
- The controversial order passed by the KEB prohibits Muslim female students from wearing a hijab (head scarf) in state educational institutions.
- A spokesperson on behalf of the State said that educational institutions are free to decide a uniform and in the absence of one, “clothes which disturb equality, integrity and public law and order should not be worn”.
- To avoid any untoward incident with respect to maintenance of law and order, the Chief Minister has ordered a state-wise closure of high school and colleges for three days.
- In response to the order banning the hijab, a few Muslim students of a Government college in Udupi District of Karnataka filed a writ petition before the High Court seeking a declaration that hijab is an essential part of their religion and they have a fundamental right to practice their religion. This was followed by writs from other parts of the State as well.
- In its order in support of the ban, the KEB cited the case of Fathima Tasneem v State of Kerala (2018) which upheld the ban on hijab and also held that dominant interest must prevail over personal interest.
- In the above case, the Court departed from its earlier ruling in the matter and held that individual rights cannot take precedence over larger public interest. As a result, the appeal of the students was dismissed.
- However, multiple Courts on various occasions have upheld the right of a Muslim women to wear the hijab on the grounds that it is an essential part of the Islamic faith.
- The Doctrine of Essentiality was first established by the Supreme Court in the case of The Commissioner of Hindu Religious Endowments, Madras v Sri LakshmindraThirtaSwamiar of Sri Shrirur Mutt (Shrirur Mutt case). As per the Doctrine the word ‘religion’ under Article 25 includes all rituals and practices that are integral to any religion and what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself
- In the case of Amna Bint Basheer v Central Board of Secondary Education (2016), the issue of dress code for appearing in the All India Pre-Medical/ Pre-Dental exam (AIPMT) came up for consideration. The Board mandated light, short sleeve clothes only to prevent malpractices. Aggrieved, the Petitioner appealed before the court to permit her to write the exam in the hijab. The Court, relying on the Doctrine of Essentiality, held that a uniform dress code cannot be insisted upon and left the choice of wearing the hijab with the students themselves on the condition that adequate steps must be taken by the students to appear before the vigilance team for inspection, including removal of head scarf in case of suspicion in front of an invigilator from the same sex.
- Similar judgment was also passed in the case of Nadha Raheem v Central Board of Secondary Education (2015).
- However, in the case of M Ajmal Khan v The Election Commissioner of India &Others(2006), the Madras High Court ruled that hijab are not an essential part of Islam and the Election Commissioner’s decision to put photograph of people on the electoral roll was not unconstitutional. It further observed that the Article 25 aims to protect religious faith and belief and not religious practices.
- Given the conflicting rulings of various High Courts, the stance of the Karnataka High Court is highly awaited. Justice Krishna S Dixit, during the proceedings, remarked that the word of law must prevail over passion and emotions and the judgment must be in accordance with the provisions laid down in the Constitution.
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