Muslim customs and Indian laws
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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
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
SC split 1-1
Dhananjay Mahapatra, Oct 14, 2022: The Times of India
New Delhi: A two-judge bench of the Supreme Court on Thursday delivered a split verdict on the validity of the Karnataka government’s circular barring students from wearing any religious clothing, including hijab, in state-run schools and colleges, setting the stage for fresh adjudication of the sensitive issue by a bench of at least three judges. While Justice Hemant Gupta framed 11 questions and carried out a detailed analysis of the arguments from both sides in his 140-page judgment to answer each question to negate the Muslim side’s pro-hijab argument, his colleague Sudhanshu Dhulia in a 76-page deci- sion took a diametrically opposite stand on the main issues to hold that hijab is purely an issue of a girl student’s faith-driven choice that cannot be violated, entai- ling denial of education to a vulnerable section of society.
After pronouncement of the fundamentally different judgments, the bench said, “In view of the divergent views ex- pressed by the Bench, the matter be placed before the Chief Justice of India for constitution of an appropriate bench. ”
Hijab ruling of SC judges clashed on fundamental constitutional issues
The judgments of Justices Hemant Gupta and Sudhanshu Dhulia in the hijab case “respectfully” clashed with each other on basic constitutional issues such as freedom of choice, right to religious practices and fraternity.
Till the “appropriate bench”, which would be of at least three judges, commences adjudication anew, the Karnataka government’s February 5 circular, upheld by a division bench of the high court, would remain in force and staterun educational institutions would be justified in enforcing uniforms on students to bar those who might insist wearing hijab or saffron shawls, as happened prior to February 5.
Justice Gupta, who retires on October 16, focused on answering the question: “whether students can enforce their religious belief in a secular institution”. He sub-divided his judicial prose into 11 parts to test the interplay of right to equality (Article 14), right to freedom of expression and choice (Article 19), right to privacy and dignity (Article 21) and right to religious practices (Article 25) juxtaposed with the right of Muslim girl students to wear hijab in staterun educational institutions where uniforms are enforced.
Validating the strict enforcement of uniforms without additions and subtractions, Justice Gupta said, “The object was to ensure that there is parity among the students in terms of uniforms. It was only to promote uniformity and encourage a secular environment in the schools. This is in tune with the right guaranteed under Article 14 of the Constitution. Hence, restrictions on freedom of religion and conscience have to be read conjointly along with other provisions of Part III (fundamental rights) as laid down under the restrictions of Article 25(1).”
He said no student is going to perform a religious duty in school and hence the state has the power to restrict wearing of hijab within a secular school premises. “The religious belief cannot be carried to a secular school maintained out of state funds,” Justice Gupta said. He said the government’s intent and object was only to maintain uniformity through enforcement of prescribed uniforms, which are provided free to all students. “The enforcement of uniforms does not violate the right to freedom of expression, it rather reinforces the right to equality under Article 1”, he said.
Onthe Muslim side’s argument that allowing Muslim girls to wear hijab and teaching other students the virtue of tolerance and respect for other religions would achieve the constitutional goal of fraternity, Justice Gupta said, “Fraternity is a noble goal but cannot be seen from the prism of one community alone. It is a goal for all citizens of the country irrespective of caste, creed, sex and religion.”
“The constitutional goal as emanating from the Preamble would not be achieved if fraternity is given a narrow meaning in respect of students identifying themselves with the religious symbols in the classroom,” he said.
In his dissenting judgment, Justice Dhulia said it was desirable for the constitutional court to speak in one voice as split verdicts do not resolve a dispute. Borrowing Lord Atkin’s words – “…finality is a good thing, but justice is better” — he penned a verdict that differed diametrically with Justice Gupta’s.
Justice Dhuliasaid whether hijab was an essential religious practice was irrelevant for adjudication of this dispute as the issue concerned the Muslim girls’ right to freedom of choice of dress. He faulted the Karnataka HC for misdirecting itself in getting unnecessarily entangled in determining essentiality of hijab to Islam by referring to Quranic verses and said the HC should have tested the circular on the touchstone of right to freedom of choice guaranteed under Article 19 of the Constitution. Justice Dhulia took the SC’s 1986 judgment in Bijoe Emmanuel case as the sole guiding light to render a decision on such a complex issue, as evident from the detailed analysis by Justice Gupta.
Inthe Bijoe Emmanuel case, the SC had quashed expulsion of three girls of Jehovah sect for not reciting the national anthem at school assembly while ruling that since they stood up in respect at the time of national anthem, they could not be said to have violated school discipline.
Justice Dhulia said courts were not the fora for deciding theological issues — whether hijab is essential religious practice or not. “The present petitioners too wear hijab as an article of their faith. They too believe that it is part of their religion and social practice. In my considered opinion, therefore, the case is squarely covered by Bijoe Emmanuel judgment.”
“All the petitioners want is to wear a hijab! Is it too much to ask in a democracy? How is it against public order, morality or health? Or even decency or against any provision of Part III of the Constitution,” asked Justice Dhulia and quashed the February 5 circular of Karnataka government. “It does not appeal to my logic or reason as to how agirl child who is wearing a hijab in a classroom is a public order problem or even a law and order problem,” he said. Justice Dhulia said, “By asking the girls to take off their hijab before they enter the school gates, is first an invasion of their privacy, then it is an attack on their dignity, and then ultimately it is a denial to them of secular education. These are clearly violative of Article 19(1)(a), Article 21 and Article 25(1) of the Constitution of India.” He said, the unfortunate fallout of the hijab restriction would be that “We would have denied education to a girl child. A girl child for whom it is still not easy to reach her school gate. This case here, therefore, has also to be seen in the perspective of the challenges already faced by a girl child in reaching her school. The question is also whether we are making the life of a girl child any better by denying her education merely because she wears a hijab!”
