Revision as of 22:59, 20 March 2022

Hijab during examinations

Allow hijab at pre-med exam, HC tells CBSE

The Times of India, Jul 22 2015

Allow hijab at pre-med exam, HC tells CBSE

The Kerala high court ordered CBSE to allow two Muslim girls to wear headscarves and full-sleeve dresses while appearing for the national medical entrance to be held on July 25th, 2015. They had argued that it is required as per their religious custom. Justice K Vinod Chandran issued the order in favour of Asiya Abdul Karim of Ashokapuram in Kozhikode and Nadha Rahim of Olavakkode in Palakkad while disposing petitions filed by them questioning the new dress code brought in by CBSE on July 9th, 2015 for candidates appearing for the All-India Pre-Medical Test.

The court said a woman invigilator should be present at the exam centre. The candidates wearing scarves should present themselves before the invigilator half an hour prior to the commencement of the examination.

SC upholds ban on hijab and long sleeves in pre-med test

The Times of India, Jul 25 2015

Dhananjay Mahapatra

`Religion can't override CBSE dress code'

The Supreme Court declined to entertain the trend of flaunting religious beliefs to seek immunity from dress code, asking three Muslim girls and little-known Students Islamic Organization of India (SIOI) to follow the code prescribed by CBSE for the All India Pre-Medical Test. Buoyed by the Kerala high court's recent order allowing two Muslim girls to wear head scarves at the exam, SIOI and the students requested the SC to grant similar relaxation to all Muslim girls during AIPMT, allowing full-sleeved dresses and head scarves. Appearing for them, advocate Sanjay Hegde said, “It is a matter of religious belief.Muslim women and girls are required by religion to be attired in full-sleeve clothing and scarf whenever they appear in public. If the relaxation in dress code is not grant ed, these girls may have to drop out of the examination.“

The bench said, “The CBSE has come out with a dress code for the sake of keeping the examination fair and proper. It is a matter of three hours. You observe the dress code mandated by the CBSE for three hours and then wear the scarf as long as you want.“ “If during the examination you do not tie the scarf, you would not be committing a sin. No discourtesy will be shown to the religion if you appear in the examination without a scarf... You go and appear in the test, don't waste time in the court,“ it said. A IPMT was cancelled by the SC following alle gations of large-scale cheating by students. To prevent a repeat, CBSE had issued an examination dress code for students making it difficult for them to hide chits or gadgets.

The CBSE notification prohibiting `scarves', `hair pin' and `hair band' as well as mandating all students to wear half-sleeved clothes without big buttons was termed by petitioners as `anti-Islamic'. “If the above portions of the notification of CBSE are enforced, the petitioners will not be in a position to sit for the AIPMT scheduled for July 25 and would also amount to violation of their right to freedom of religion,“ the petition said.

A bench of Chief Justice H L Dattu and Justices Arun Mishra and Amitava Roy said this argument ­ “allow me to wear the dress dictated by religion otherwise I would not appear in the examination“ ­ was “nothing but an ego issue“.

Appearing for the students, senior advocate Sanjay Hegde said the students were ready to come to the examination centre an hour before the scheduled time to subject themselves to a thorough check by women invigilators.But the bench asked: “If all the students come dressed similarly , how would the in vigilator examine their religion and determine whether they were entitled to claim relaxation in dress code?“ The CJI said the SC has on administrative side passed an order saying no one would enter the court rooms with a cap or hat on. “Can a person violate it saying he belonged to a particular religion,“ he asked. Finding the going tough, Hegde sought permission to withdraw the petition. The court dismissed it as withdrawn.

Uniforms in educational institutions

Hijab not essential to Islam: Karnataka HC, 2022

Vasantha Kumar, March 16, 2022: The Times of India

Hijab not essential to Islam: Karnataka HC, 2022
From: Vasantha Kumar, March 16, 2022: The Times of India

Bengaluru: The Karnataka high court ruled that wearing the hijab is not an essential religious practice of Islam and upheld a state government order on adhering to uniform in educational institutions. The court dismissed a batch of petitions saying not being allowed to wear the headscarves in class violates fundamental rights.

At a time when the rule doing away with hijab in classrooms has become a flashpoint of religious tension in the state and has spread in other parts of the country, the judgment endorsed the spirit of “uniformity” that school and college dress codes/uniforms promote.

Athree-judge full bench of Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi rejected the plea that the ban violates rights guaranteed by the Constitution under Articles 14 (equality), 15 (no discrimination over faith), 19 (freedom of speech & expression), 21 (protection of life & personal liberty) and 25 (freedom of religion).

It dismissed petitions filed by students from Udupi, Kundapur and Bengaluru and also acouple of PILs that had set off anationwide debate. The row began in December when the Government PU College for Girls in Udupi barred students wearing hijab from class, triggering protests. On February 5, the state government issued a circular asking students to wear the uniform prescribed by the state or school/college development commitee.

Petitioners’ averments vague, K’taka HC says in hijab case

Whichever be the religion, whatever is stated in the scriptures, does not become per se mandatory in a wholesale way. That is how the concept of essential religious practice is coined,” the HC verdict said. “If everything were to be essential to the religion logically, this very concept would not have taken birth. It is on this premise the Supreme Court in Shayara Bano, proscribed the 1400-yearold pernicious practice of triple talaq in Islam. What is made recommendatory by the Holy Quran can’t be metamorphosed into mandatory dicta by a hadith which is treated as supplementary to the scripture. A contra argument offends the very logic of Islamic jurisprudence and normative hierarchy of sources.”


The court held in its 129-page judgment that the prescription of school uniform is a reasonable restriction constitutionally permissible to which the students cannot object.


The verdict matches up to the HC’s interim order on February 10 — the first day of hearing in the case — in which it forbade students from wearing saffron shawls (bhagwa), scarf, hijab, religious flags or the like in classrooms of schools and colleges that have prescribed a dress code/uniform.

Meagre material


The HC said the material before the court was extremely meagre and it’s surprising that in a matter of such significance, the petitioners’ averments were as vague as they could be. The bench said no affidavit sworn to by any maulana explaining the implications of the “suras” (sections or chapters of the Quran) quoted by the petitioners was placed before the court, and it wasn’t specifically mentioned for how long the petitioners were wearing the hijab.


“It can hardly be argued that hijab being a matter of attire, can be justifiably treated as fundamental to Islam. 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. The 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’,” the bench said.
On the petitioners’ argument that the ban hurt their conscience, the court said: “Whether conscience the petitioners had and how they developed it are not averred in the petition with material particulars. Merely stating that wearing hijab is an overt act of con- science and therefore, asking them to remove hijab would offend conscience, would not be sufficient for treating it as a ground for granting relief.”

Government order upheld

The bench upheld the state government’s circular issued on February 5 regarding a uniform dress code in educational institutions. “We hasten to add that certain terms used in a government order such as ‘public order’, etc., cannot be construed as the ones employed in the Constitution or statutes,” it said. 
“Nowadays, courts do often come across several government orders and circulars which have lavish terminologies, at times lending weight to the challenge…(that) The impugned order could have been well drafted is true. ‘There is scope for improvement even in heaven’, said Oscar Wilde,” the bench noted.

Plea against school staff, CDC rejected


The bench rejected pleas in the petition filed by the Udupi college students for disciplinary action against the principal, lecturers and staff of their institution and also for removal of the college development committee chairman and vice-chairman.

Excerpts from the ruling

March 16, 2022: The Times of India

ON DEMAND TO REMOVE DRESS CODE

It is too far-fetched to argue that the school dress code militates against the fundamental freedoms guaranteed under articles 14 (equality before law), 15 (prohibits discrimination on grounds of religion, race, caste, sex or place of birth), 19 (freedom of speech and expression), 21 (protection of life and personal liberty) and 25 (freedom of religion) of the Constitution

ON SCHOOL UNIFORM

School uniforms promote harmony and 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…The school regulations prescribing dress code for all the students as one homogenous class, serve constitutional secularism

ON HIJAB BEING ESSENTIAL RELIGIOUS PRACTICE

…it can hardly be argued that hijab, being a matter f 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

EQUAL OPPORTUNITY & POSITIVE SECULARISM

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. It doesn’t violate the right to freedom of speech and expression under Article 19(1) and the right to privacy under Article 21 of the Constitution. It hardly needs to be stated that this does not rob of the autonomy of women or their right to education inasmuch as they can wear any apparel of their choice outside the classroom

ON NEED TO CONTEXTUALISE ‘RIGHTS’

All rights have to be viewed in the contextual conditions which were framed under the Constitution and the way in which they have evolved in due course. As already mentioned above, the Fundamental Rights have relative content and their efficacy levels depend upon the circumstances in which they are sought to be exercised

ON SEEKING REASONABLE ACCOMMODATION

The counsel for petitioners passionately submitted that the students should be permitted to wear hijab of structure and colour that suit the prescribed dress code…We are not impressed by this argument. Such a proposal is accepted, the school uniform ceases to be uniform. There shall be two categories of girl students viz, those who wear the uniform with hijab and those who do it without. That would establish a sense of ‘social-separateness’, which is not desirable

OBJECT OF PRESCRIBING UNIFORM

The object of prescribing uniforms will be defeated if there is non-uniformity in the matter of uniforms. Restriction against wearing of hijab in educational institutions is only a reasonable restriction constitutionally permissible, which the students cannot object to

ON ARGUMENT OF FREEDOM OF CONSCIENCE

Merely stating that wearing hijab is an overt act of conscience and therefore, asking them to remove hijab would offend conscience, would not be sufficient for treating it as a ground for granting relief

FREEDOM OF CONSCIENCE AND CONSTITUENT ASSEMBLY DEBATES

Freedom of conscience, as already mentioned above, is in distinction to the right to religion as was clarified by Dr BR Ambedkar in the Constituent Assembly debates. There is scope for the argument that the freedom of conscience and the right to religion are mutually exclusive. Even by overt act, in furtherance of conscience, the matter does not fall into the domain of right to religion and thus, the distinction is maintained

NO EVIDENCE FOR ARGUMENT

They have not averred anything as to how they associate wearing hijab with their conscience, as an overt act. There is no evidence that the petitioners chose to wear their headscarf as a means of conveying any thought or belief on their part or as a means of symbolic expression