This Article is written by Divya K. (currently pursuing BBA LLB in Symbiosis Law School)
HIJAB CASE: SHOULD THE STUDENTS BE ALLOWED TO WEAR RELIGIOUS SYMBOLS IN EDUCATIONAL INSTITUTIONS?
In India, there are various religious communities and they have their own beliefs. They have their own religious symbols, practices, and faiths which desire to follow and exercise in real life. The constitution of India gives the citizens of India the right to freedom of speech and expression and it gives the citizens the right to freely profess and practice their religious freedom. The question here before the court was whether the students can be allowed to wear religious symbols specifically hijab in schools. The schools ask students to wear specific uniforms and certain schools restrict their students from wearing religious symbols in educations institutions. In the present case, Smt Resham and Another vs State of Karnataka and Others, the girl students were restricted from wearing hijab in schools. These gave rise to the question of the exercise of certain constitutional rights in India. Is it justified to restrict students from practising religious faith by wearing hijab? The Muslim community considers wearing hijab as an essential practice for their religious beliefs and faith. So, if wearing hijab is restricted will it be against the right of freedom to profess religious practices provided by the constitution of India. The current article will present the case summary and analysis of the Hijab case.
FACTS OF THE CASE:
The hijab row ensued on 1st January 2022 when at the Government PU College in Udupi six female students were not allowed to enter classrooms wearing hijab. In order to take permission, the students held a press conference but the college authorities did not agree and iterated that they cannot let the students cover their faces in classrooms. This led to protests by students against the college authorities. As time passed by, similar kinds of protests were witnessed in different parts of the country. The situation was aggravating as a result of which several educational institutions were closed on a temporary basis. The case was referred to the court in which the court passed an interim order restricting the students to wear hijab or other religious symbols till the case is decided. The court iterated that this interim order will cover schools and degree colleges as well where the uniform has been prescribed. This order will apply only to students.
The petitioner argues that wearing Hijab is an essential part of their community’s religious belief and suspension of such practice undermines the community’s faith even if the duration is of a few hours. They claimed that such restriction violates their fundamental rights provided under article 19 and article 25 of the Indian constitution. The petitioner relied its contentions on the judgment of KwaZulu- Natal, and others v Pillay where the constitutional court of South Africa upheld the right of a Hindu girl wearing a nose ring to the school.
The respondent argues that wearing the hijab is not an essential practice of Islam, the right to wear hijab cannot be found under Article 19 (1)(a) of the Indian constitution, and lastly that the order passed by the government empowering the College development committee to prescribe uniform is in line with the KarnatakaEducation Act, 1983.
- The case has the following issues:
- Whether the wearing of hijab is an essential religious practice of Islam with respect to the constitutional rights provided to citizens of India?
- Whether the interference of the state in such matters is justified?
- Whether wearing of hijab is a part of the religious practice and expression that is guaranteed under Article 19 (1)(a) of the Constitution of India?
In the present case, the court observes fundamental rights provided under article 19 and article 25. The court observed whether wearing a hijab is an essential part of religious practice and whether it is guaranteed under the right to speech and expression under Article 19 (1)(a) of the Constitution of India. Article 25 is also an important article with respect to the present case as it guarantees freedom for religious practice. It provides “the freedom of conscience, the freedom to profess, practice and propagate religion to all the citizens.”
The court decided in favour of the state. The order restrained the school or college-going students from wearing hijab in classrooms in lieu of the pending consideration of the petitions. These restrictions are only for students of the institutions where a specific uniform is prescribed as the daily attire. The court ordered that “Pending consideration of all petitions, we restrain all the students regardless of their religion or faith from wearing saffron shawls (Bhagwa), scarfs, hijab, religious flags or the like within the classroom until further orders.” The court observed that our country is a civilized society and no person can be allowed to act in a way that is against public peace and tranquillity. Due to the continuous protests, educational institutions were closed which could possibly result in having detrimental effects on the educational career of the students. The court iterated that the interests of the students can be catered to by their returning to the classrooms than by continuing these agitations. Hence, for the time being, the practice of wearing hijab in classrooms is restricted.
The article started with the question should the students be allowed to wear religious symbols in educational institutions? The answer is still not clear. The Karnataka high court restricted the students from wearing any religious symbols to the institutions. They held that prescribing the students with school uniforms is a reasonable restriction and constitutionally permissible. But the judgment was not accepted by the community and many social activists. 66-year-old activists moved the supreme court against the Karnataka High court’s judgment which restricted the wearing of hijab in educational institutions and held that wearing hijab is not an essential practice of Islam. The petitioner, in this case, claims that the high court failed to apply the tests applicable to the restrictions on the fundamental right of freedom of speech and expression and the right to privacy.
India Const. art. 19 cl (1)(a).
 India Const. art 25.