SC’s Split Verdict on Karnataka Hijab Ban

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    • A two-judge bench of the Supreme Court has recently delivered a split verdict on the Karnataka government’s ban on wearing hijab in state pre-university colleges.

    More about the news

    • Controversy:
      • In December 2021, controversy erupted at the Government College after students submitted a memorandum to the principal seeking permission to wear hijabs (headscarves) in classrooms. They were denied permission.
      • Since then, many schools and colleges in Karnataka have not allowed students to enter their institutions wearing hijabs. 
    • Petitioners Arguments: 
      • Wearing “hijab” is their personal choice and key to their religious practice. How the mere wearing of a hijab by students could constitute a public order issue. 
      • The government cannot delegate to college committees the function of determining whether the hijab was detrimental to public order. 
    • Split verdict of the apex court:
      • Verdict supporting the ban:
        • One of the judges upheld the Karnataka High Court order validating the ban and said “it was only to promote uniformity and encourage a secular environment” in classrooms.
          • According to him, religious belief cannot be carried to a secular school maintained out of State funds.
          • Thus, the practice of wearing hijab could be restricted by the State in terms of the Government Order
      • Verdict opposing the ban:
        • Whereas the other Judge underlined that all that matters is the education of the girl child & ordered to set aside the state and High Court orders.
        • He called the right to wear the hijab in classrooms “a matter of choice”, a “fundamental right” linked to the girl’s “dignity and her privacy even when she is inside the school gates”.
      • Matter of faith:
        • The bench also held that irrespective of whether the practice of wearing the hijab is a religious practice or essential religious practice or social conduct for the women of Islamic faith, the “interpretations by the believers of the faith about wearing of headscarf is the belief or faith of an individual”.
    • What happens in case of a split verdict?
      • The split verdict means that the matter will now be placed before the Chief Justice of India for further directions — it will likely go to a larger bench. 
      • And until the Supreme Court issues any direction, the ban on the hijab in Karnataka classrooms will remain in place.

    Matter of Essential Religious Practices

    • Petitioners cited the Ratilal Panachand Gandhi vs The State Of Bombay (1954): 
      • No outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate”. 
      • Issue of Essential Religious Practice comes into play only when the practice is violent and it infringes the freedom of others. 
      • Petitioners submitted that wearing of hijab in no way curtails anybody’s freedom.
    • What are Essential Religious Practices?
      • To define the essential elements of religion, the supreme court of India laid down the “essential element of religion” doctrine
      • Before this, the supreme court had to define what exactly is religion, resolve the appeals against the legislations which were labeled as controlling religious institutions, and delimit the boundaries of religious institutions.
      • The rituals, modes of worship, and ceremonies all come under essential practices of religion. 
      • These have to be protected to the extent that they are within the limits of Articles 25 and 26 of the Constitution of India. 

    Battle of Arguments in Hijab Ban Case

    • Arguements in favour of Hijab ban:
      • Matter of Unity & integrity:
        • According to the government order issued under the Karnataka Education Act, 1983, “public order” is one of the reasons for not allowing students to wear a headscarf in educational institutions along with “unity” and “integrity.”
      • Schools maintained by 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, may be tilak, which can be identified to a person holding a particular religious belief.
        • The State is within its jurisdiction to direct that the apparent symbols of religious beliefs cannot be carried to school maintained by the State from the State funds. 
    • Arguments against the Hijab ban:
      • Dignity and privacy:
        • A girl child has the right to wear a hijab in her house or outside her house, and that right does not stop at her school gate. 
        • The child carries her dignity and her privacy even when she is inside the school gates, in her classroom.
      • Fundamental Right:
        • Article 25 of the Constitution guarantees to all persons the right to freedom and conscience and the right freely to profess, practise and propagate religion subject to public order, morality and health.
      • Muslim girls already at disadvantage:
        • Data show that Muslim girls were already at a disadvantage in school education compared to those from other religions. 
        • According to the National Family Health Survey (NFHS)-5, the share of Muslim girl students in the 6-17 age group attending schools in 2019-20 was significantly lower than their Hindu and Christian counterparts in almost all States except Kerala. 

    Way Ahead

    • The Constitution of India, in spirit, shuns extremism of any sort. 
    • It provides that the right to education, right to equality and right to religion co-exist together and no one of them has a paramount importance in exclusion of others.
    • So, the answer lies in the ‘middle path’ advocated by the Constitution of India. All controversies will have to eventually find their end in this manner, if those upholding the Constitution stay true to it.

    Source: IE