Hijab row and the Judgement of Karnataka High Court.



The Karnataka high court judgement on the issue of whether or not wearing a hijab is an essential practice of Islamic religion or not is again in controversy and that's why it becomes important to analyse the judgement without taking any side. Yesterday the Karnataka High Court in its judgement upheld the ban on wearing of hijab by the students in schools and colleges within the state of Karnataka. Now, the Karnataka High Court had to answer multiple questions. The first question that they had to answer was whether wearing a hijab is an essenti religious practice as per Islam or not, because if it is, then it should be guaranteed under Article 25. Secondly, they also had to answer whether is it a legal and constitutional right of the education institutions to decide a uniform for the students of the education institutions or not? These are some of the questions that the Karnataka High Court had to answer.


The Karnataka high court judgement was given by a three judge bench, it was headed by the Chief Justice Rituraj Awasthi then there was a Shri Krishna. S Dixit and then there was a Justice J. M Kasi. Also it was a unanimous judgement means it was not that one judge had one view and the other judges had some other view, all three judges had the same view. The bench said that the Karnataka government's order that was during the fifth of February, that prescribed guidelines for uniforms in schools and pre University colleges is as per the law and the government is allowed to impose school uniforms. The court also said in the 129 page judgement, that the school uniform will cease to be a uniform if hijab is also allowed as a part of this uniform.


The bench of the Karnataka High Court has said that the restriction that has put on hijab is reasonable and that is why it is allowed as per the Constitution because Article 25, that is a fundamental right to practice and profess religion comes with certain restrictions that should be reasonable and not wearing a hijab is a part of reasonable restrictions. As per the Karnataka high court, the court said, there is no material place on record primer facie, that shows that wearing of a hijab is a part of an essential religious practice in Islam and that is why the students or the petitioners should not say that it is a fundamental right that they have. In fact, in the end of the judgement, the court also says that while this uniform code was existing since 2004, we are surprised why this matter had come up all of a sudden, the court in fact said that there are unseen hands behind this controversy and they should be put to justice as soon as possible.


The court said that we are in a state where Muslims in great numbers participate in Hindu festivals also, for example, Muslims participate in festivals, such as the ashta mutt sampradaya, which is the ideals on the basis of which the Indian society rest and these kinds of controversies, who against these ideals and thus they should be stopped as soon as possible.


On the question of whether it is a part of Article 25 or not, the court said that article 25 that allows a freedom of conscience, faith and religion and article 19 that allows you a freedom of speech and expression have certain restrictions that can be imposed on them by the state. But the petitioner said, that is the student side, that the restrictions can be imposed by the government that is fine but the restriction should only be in public order, health and morality and in the case of hijab none of these restrictions are valid but the court said that no, that is not true, the restriction of not being allowed to wear a hijab over the uniform is considered as a reasonable restriction and we will allow. The court in fact said that article 25 is not as important as some of the other fundamental rights that we have. The court said that article 25 itself starts with the restrictions that have been imposed on it and those people who are arguing that we have the right to profess our religion under Article 25 must understand that this cannot come at the cost of public order and this cannot come at the cost of obstructing the usual practices that are followed inside education institutions.


The court has said that we are relying on the commentary of the Quran by a famous Indian jurist that is Mr. Abdullah Yusuf Ali. Now the question was that some people said that we are interpreting Quran in a way that it says that wearing a hijab is mandated, while the other people said that Quran is to be interpreted in the way in which wearing a hijab is not compulsory. The judges here have relied on the interpretation of the Holy Quran by this famous Indian jurist according to whom not every activity associated with religion is an essential religious practice. The court said that wearing a hijab is not fundamental to the Islamic law and it's not a cornerstone of this religion. In fact, Mr Abdullah Yusuf Ali in his commentaries of the Holy Quran has said that hijab is not even referred to in Quran. Also in the Holy Quran wearing a hijab is only recommended, there is no penalty given for not wearing a hijab which means that it is not a part of the compulsory religious practices. In fact, wearing of hijab was recommended in the earlier time in the mediaeval period because it was a form of social security for the women because we were living in barbaric times when women had to take care of themselves and had to protect against the evil in the society and the same issue does not exist right now as per the court that is why the practice of wearing this apparel has to do more with culture, and not really with religion, as per the courts detailed order.


The court said by unanimous segment that there has to be a very delicate balance maintained between the collective rights of the community at large and the individual rights of the members and thus ended a court session. Obviously, the petitioner side that is the students don't agree with this and some of them have already approached the Supreme Court. So very soon, we might see the matter being listed at the Supreme Court level as well and we see if there is any change in the judgement given by the apex court or not.

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