In News
- The Karnataka High Court is hearing a challenge to the constitutionality of the state government’s ban on students wearing a hijab in educational institutions.
- The case was in relation to an argument on whether the state can justify the ban on the ground that it violates ‘public order’.
What is Public order?
- Public order is one of the three grounds on which the state can restrict freedom of religion. Public order is also one of the grounds to restrict free speech and other fundamental rights.
- 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.
- Public order is normally equated with public peace and safety. According to List 2 of the Seventh Schedule of the Constitution, the power to legislate on aspects of public order rests with the states.
How has public order been interpreted by courts?
- What affects public order is contextual and is determined by the state. But courts have broadly interpreted it to mean something that affects the community at large and not a few individuals.
- In Ram Manohar Lohia vs State of Bihar (1965), the Supreme Court held that in the case of ‘public order, the community or the public at large have to be affected by a particular action.
- The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large.
How does it relate to the hijab ban?
- According to the government order issued on February 5 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.”
- 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.
- They 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. He submitted that wearing of hijab in no way curtails anybody’s freedom.
- Karnataka Government’ Stand: Karnataka’s Advocate General has argued that the government order makes no mention of “public order” and that the petitioner’s reading of the order could be an error in translation.
- The order, in Kannada, uses the words “sarvajanika suvyavasthe”.
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.
Way Ahead
- The questions that are brought to bear on the dispute are whether the practice demanded by the Quran, the Hadith and so on is to be interpreted by the Court of Law.
Source: IE
