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A petition has been filed before the Supreme Court challenging the Karnataka High Court order in dismissing the plea challenging the alleged ban on wearing the Hijab at Pre-University colleges in Udupi district of Karnataka.

The plea filed through Advocate Anas Tanwir has alleged that the High Court has failed to note that the Karnataka Education Act, 1983, and the Rules made thereunder, do not provide for any mandatory uniform to be worn by students. Whereas, the Act reveals that it aims to regulate the institutions, rather than the students, the plea added.

In addition to this, the plea further added that, "there does not exist any provision in law which prescribes any punishment for students for not wearing uniforms. Even if one were to presume that there existed a mandate to wear a particular uniform, there is no punishment prescribed in case a student does not wear the uniform."

The plea has also alleged that the High Court has failed to highlight the actions of the State which have shifted the burden of maintenance of public order from the State to the public on the basis that the wearing of Hijab by the Petitioner is the sole reason for the situation. "This is akin to the claim that the Petitioner is responsible for the issue because they have chosen to practice their faith publicly," the plea added.

Referring to the exemption of turban-wearing Sikhs from wearing a helmet and banning hijab the plea stated that "This public order was passed with an indirect intent of attacking the religious minorities and specifically the followers of Islamic faith by ridiculing the female Muslim students wearing Hijab."

"This ridiculing attack was under the guise of attaining secularity and equality on the basis of uniform wherein the College Development Committees prohibited the students wearing Hijab from entering the premises of the educational institutions. This step-motherly behaviour of Government authorities has prevented students from practising their faith which has resulted in an unwanted law and order situation," the petitioner added.

It may be noted that during the pendency of the issue before the High Court, a petition has been filed before Supreme Court over the same issue, to which, A bench comprising the Chief Justice of India NV Ramana, Justice AS Bopanna and Justice Hima Kohli had said that "It's too soon to interfere with the High Court, let them decide, as soon we list the matter the High Court stops hearing it."

The Karnataka High Court had today observed that "what is not religiously made obligatory...cannot be made a quintessential aspect of the religion through public agitations or by the passionate arguments in courts."

Background:

The High Court rejected petitioners' contention that the girl students have the freedom of conscience guaranteed under Article 25 and observed that "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. Pleadings at least for urging the ground of conscience are perfunctory, to say the least."

Court said, "if a person who seeks refuge under the umbrella of Article 25 of the Constitution has to demonstrate not only essential religious practice but also its engagement with the constitutional values...It’s a matter of concurrent requirement. It hardly needs to be stated, if essential religious practice as a threshold requirement is not satisfied, the case does not travel to the domain of those constitutional values."

Notably, Court added, "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. If everything were to be essential to the religion logically, this very concept would not have taken birth."

Further, examining the argument raised by the counsel for the petitioners that 'the Quran injuncts Muslim women to wear hijab whilst in public gaze', Court observed, " There are numerous dimensions of understanding the usage of the hijab: visual, spatial, ethical and moral. This way, the hijab hides, marks the difference, protects, and arguably affirms the religious identity of the Muslim women."

Court noted, "The Holy Quran does not mandate wearing of hijab or headgear for Muslim women. Whatever is stated in the above sūras, we say, is only directory, because of absence of prescription of penalty or penance for not wearing hijab, the linguistic structure of verses supports this view."

Furthermore, regarding petitioners’ contention that ‘a classroom should be a place for recognition and reflection of diversity of society, a mirror image of the society (socially & ethically)’, Court held that the contention in its deeper analysis is only a hollow rhetoric.

Court said, "Though the basic human rights are universal, their regulation as of necessity is also a constitutional reality. The restriction and regulation of rights be they fundamental or otherwise are a small price which persons pay for being the members of a civilized community."

"There has to be a sort of balancing of competing interests i.e., the collective rights of the community at large and the individual rights of its members," Court stressed.

Therefore, noting that there was absolutely no material placed on record to prima facie show that wearing of hijab is a part of an essential religious practice in Islam and that the petitioners have been wearing hijab from the beginning, Court dismissed the petitions. 

Court held, "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."

Lastly, rejecting petitioners' demand to initiate an inquiry against the school and principal for imposing such a restriction, Court held that the prescription of school uniform is only a reasonable restriction constitutionally permissible which the students cannot object to. 

Court reasoned that “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, " Court concluded. 

Case Title:  X Vs State of Karnataka