KARNATAKA HIGH COURT
Ritu Raj Awasthi, CJ., Krishna S. Dixit
and J.M. Khazi, JJ.
Smt. Resham and Ors. – Petitioners
versus
State of Karnataka and Ors. – Respondents
Writ Petition No.2347 of 2022 (GM-RES) C/w Writ Petition No.2146 of 2022 (GM-RES), Writ Petition No.2880 of 2022 (GM-RES), Writ Petition No.3038 of 2022 (GM-RES), Writ Petition No.3424 of 2022 (GM-RES-PIL), Writ Petition No.4309 of 2022 (GM-RES), Writ Petition No.4338 of 2022 (GM-RES-PIL)
Decided on 15.3.2022

IMPORTANT POINT
(1) Holy Quran does not mandate wearing of Hijab or headgear for Muslim women – Wearing of Hijab by Muslim women does not form a part of essential religious practice in Islamic faith.
(2) Prescription of dress code for students that too within four walls of class room as distinguished from rest of school premises does not offend constitutionally protected category of rights, when they are ‘religion-neutral’ and ‘universally applicable’ to all students.
(3) It is not an obligatory overt act enjoined by Muslim religion that a girl studying in all girl section must wear head-covering.
(4) Prescription of school dress code to exclusion of Hijab, Bhagwa, or any other apparel symbolic of religion can be a step forward in direction of emancipation and more particularly, to access to education – This does not rob off autonomy of women or their right to education inasmuch as they can wear any apparel of their choice outside classroom.
(5) Idea of schooling is incomplete without teachers, taught and dress code.

Headnote:

(A) Mohammedan Law – Hijab – Dress Code for Muslim Women on touchstone of Holy Quran, Hadis, Ijmaa and Qiyas – What is not religiously made obligatory cannot be made a quintessential aspect of religion through public agitations or by passionate arguments in courts – What is made recommendatory by Holy Quran cannot be metamorphosed into mandatory dicta by Ahadith which is treated as supplementary to the scripture – A contra argument offends very logic of Islamic jurisprudence and normative hierarchy of sources – Wearing of Hijab by Muslim women does not form a part of essential religious practice in Islamic faith. (Para 4(IX)(vi), (vii), (XII)(i))

(B) Constitution of India – Articles 19(1)(a), 21 and 25 – Right to wear Hijab and Burqa in educational institutions – Whether wearing Hijab/head-scarf is a part of ‘essential religious practice’ in Islamic Faith protected under Article 25 of Constitution – State does not extend patronage to any particular religion – Article 51A(e) of our Constitution imposes a Fundamental Duty on every citizen ‘to promote harmony and spirit of common brotherhood amongst all people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to dignity of women – A person who seeks refuge under umbrella of Article 25 of Constitution has to demonstrate not only essential religious practice but also its engagement with constitutional values that are illustratively mentioned at Paragraph 291 of Indian Young Lawyers Association v. State of Kerala, (2019) 11 SCC 1 – It’s a matter of concurrent requirement – If essential religious practice as a threshold requirement is not satisfied, case does not travel to domain of those constitutional values. (Para 4(V)(ii) and VII)

(C) Mohammedan Law – Hijab – Right to wear Hijab and Burqa in educational institutions – Whether wearing Hijab/head-scarf is a part of ‘essential religious practice’ in Islamic Faith protected under Article 25 of Constitution – Holy Quran does not mandate wearing of Hijab or headgear for Muslim women – This apparel at the most is a means to gain access to public places and not a religious end in itself – It was a measure of women enablement and not a figurative constraint – History of mankind is replete with instances of abuse and oppression of women – Region and times from which Islam originated were not an exception – Quran shows concern for cases of molestation of innocent women and therefore, it recommended wearing of this and other apparel as a measure of social security – May be in course of time, some elements of religion permeated into this practice as ordinarily happens in any religion – However, that per se does not render the practice predominantly religious and much less essential to Islamic faith – Veil was a safe means for women to leave confines of their homes – Whichever be religion, whatever is stated in scriptures, does not become per se mandatory in a wholesale way – That is how concept of essential religious practice is coined. (Para 4(IX)(iii), (vi), (vii))

(D) Mohammedan Law – Hijab – Wearing Hijab being a matter of Freedom of Conscience – Conscience is by its very nature subjective – Whether petitioners had conscience of kind and how they developed it are not averred in petition with material particulars – 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 is in distinction to right to religion – There is no evidence that 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 – In order to establish their case, claimants have to plead and prove that wearing of Hijab is a religious requirement and it is a part of ‘essential religious practice’ in Islam – In order to establish their case, claimants have to plead and prove that wearing of Hijab is a religious requirement and it is a part of ‘essential religious practice’ in Islam – Respondents are more than justified in contending that Writ Petitions lack essential averments and that petitioners have not loaded to record the evidentiary material to prove their case – It is not that if alleged practice of wearing Hijab is not adhered to, those not wearing Hijab become sinners, Islam loses its glory and it ceases to be a religion – Petitioners have miserably failed to meet 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’. (Para 4(XI), (XII)(i))

(E) Karnataka Education Act, 1983 – Section 133(2) – Constitution of India – Articles 19(1)(a), 21 and 25 – Power to prescribe dress code in educational institutions – Idea of schooling is incomplete without teachers, taught and dress code – Collectively they make a singularity – No reasonable mind can imagine a school without uniform – Even in absence of enabling provisions, power to prescribe uniform as of necessity inheres in every school subject to all just exceptions – There has been a overwhelming juridical opinion in all advanced countries that in accord with general principle, school authorities may make reasonable regulations governing conduct of pupils under their control and that they may prescribe kind of dress to be worn by students or make reasonable regulations as to their personal appearance, as well – Our Constitution protects rights of school children too against unreasonable regulations – However, prescription of dress code for students that too within four walls of class room as distinguished from rest of school premises does not offend constitutionally protected category of rights, when they are ‘religion-neutral’ and ‘universally applicable’ to all students – School uniforms promote harmony and spirit of common brotherhood transcending religious or sectional diversities – Fundamental Rights have relative content and their efficacy levels depend upon the circumstances in which they are sought to be exercised – Persons have a host of rights that are constitutionally guaranteed in varying degrees and they are subject to reasonable restrictions – Ordinarily, a positive of right includes its negative – However, negative of a right is not invariably coextensive with its positive aspect – Object of prescribing uniform will be defeated if there is non-uniformity in matter of uniforms – Prescription of school uniform is only a reasonable restriction constitutionally permissible which students cannot object to – Prescription of school dress code to exclusion of Hijab, Bhagwa, or any other apparel symbolic of religion can be a step forward in direction of emancipation and more particularly, to access to education – This does not rob off autonomy of women or their right to education inasmuch as they can wear any apparel of their choice outside classroom. (Para 4(XIII)(i), (iii), (XIV)(i), (iv), (vii), (ix), (x) and (XVII)(ii))

Result: Writ Petitions dismissed.