Hijab Case Hearing: Analysis

Hijab Case

A case challenging the banning of wearing the hijab in educational institutions in Karnataka is being heard by the Supreme Court. The applications were filed in response to a Karnataka High Court decision upholding a state government decision allowing government schools and college development committees to impose a hijab ban on campus. A bench of Justices Hemant Gupta and Sudhanshu Dhulia is hearing the case.

Karnataka High Court Judgement

Recently, on March 15, in the case of Smt Resham v. the State of Karnataka, the Karnataka High Court upheld a Karnataka government order that effectively gave college development committees of government colleges in the State the authority to forbid Muslim female students from wearing hijabs on college campuses. In this case, Muslim female students from various colleges in Karnataka who had been denied permission to attend class because they were wearing the hijab filed petitions with the High Court.

A three-judge panel consisting of Former Chief Justice Ritu Raj Awasthi, along with Justices Krishna S. Dixit and J.M. Khazi, had ruled that:

  • Hijab is not an essential part of Islam’s religious practises, and Article 25 of the Constitution which deals with the Freedom of Religion are subject to reasonable restrictions.
  • The demand for uniforms constitutes a reasonable restriction on the right to freedom of expression under According to Article 19(1) (a).

Regarding limitations, petitioner counsel said that the freedom to wear a dress is a part of the fundamental right to free expression and that it would take a severe violation of this right to impose limitations on it in the name of “public order.” He questioned how it might be a public order issue if a girl wears a hijab inside a college if wearing one outside is not.

The 2018 Kerala High Court decision Fathima Thasneem v. the State of Kerala, which determined that the hijab was not a fundamental Islamic religious practice, served as the foundation for the Karnataka state order. However, this judgement, in the petitioner counsel’s opinion, was made in a distinct circumstance and cannot be applied to the circumstances in Karnataka. However, the Kerala High Court ruled in Amnah Bint Basheer v. CBSE in 2016 that the hijab is an essential religious practice in Islam. This directive permitted Muslim students to take the CBSE All-India Pre-Medical Entrance Test by covering their heads.

Recently, an appeal in the supreme court has been filed against the Karnataka high court judgement. It has contended that the High Court “failed to note that the right to wear a Hijab comes under the ambit of “expression” protected under Article 19(1)(a) of the Constitution.” Additionally, it argued that the High Court overlooked the fact that Article 21 of the Indian Constitution’s right to privacy covers the wearing of a hijab.

Some Important Highlights

  • Hegde, who represented the appellants and asserted the right to wear the hijab, said: “Can you tell a grown lady that she would not have authority over her own idea of modesty? ”
  • Justice Gupta questioned the senior counsel Hegde’s argument: “It might be a religious practice, but the question is can you take hijab to a school where a uniform is prescribed?”
  • When speaking on behalf of the state government, Advocate General P Navadgi said: “School administrators wrote to us seeking guidance since after wearing the hijab, some students wore bhagwa shawls, which then caused turmoil in educational institutions. This serves as the context for the official order. The state was cautious not to impose any uniforms but left the door open for each institution to impose its own. Hijab is prohibited in some institutions. In this case, the government did not impede any rights. All we did was adhere to that institutional policy.
  • Justice Dhuli posed the question, “Suppose there is a minority institution, may there be a hijab?” Yes, there might be, the Advocate General said in response. We have turned it over to the institution. There may be Islamic management institutions in Karnataka that permit the hijab. Government intervention doesn’t exist. However, the AG stated that college development committees are trusted to make decisions in the case of government-run institutions. Some have decided to forbid the hijab, such as the Udupi College.

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