Scroll Top

THE HIJAB CONTROVERSY: A STUDY ON LEGAL PERSPECTIVE

INTRODUCTION

The Hijab controversy was commenced on December 31, 2021, in Karnataka and six woman students who are studying at a government pre-university college in Udupi, on that day, were barred from attending their school classes for wearing Hijab.[1] After that, the students filed a writ petition before the Hon’ble Karnataka High Court and also approached the National Human Rights Commission.[2] They said to the Hon’ble Court that denying to wear the hijab was a violation of articles 14 and 25 of the Indian Constitution which are the fundamental rights of an individual.[3] In this context, Mr Araga Jnanendra who is the Home Minister of Karnataka was conferred a statement that religion ought to be kept away from education institutions because students studying ought to neither appear saffron shawl nor wear hijab as well as he said that students should not appear in school to abide their religion custom because of an educational institution is a temple of knowledge and should come here to get an education.[4] The Home Minister of Karnataka also said that the educational institution is such a place where all the students ought to stay together and take education.[5]

CURRENT SCENARIO OF THE INCIDENT

This matter has been expressed as a confrontation between two religions Hindu and Muslim. In this issue, we are looking that some students entering into educational institutions by wearing their religious traditions. At this moment, the question arises in our mind if anyone comes to educational institutions with their religious dress then education would not be for them? if it occurs then the right to education would be violated. However, recently an order has been issued by the Karnataka Government which is declaring that students must comply with the uniform dress code prescribed by committees of the college development.

CONSTITUTIONAL PROVISIONS

Article 14 of the Indian Constitution confers equality before the law or equal protection of the laws throughout the territory of India. It denotes that State would not be denied any individual equality before the law or the equal protection of the laws across the territory of India. Besides, the Human Rights Act provides that there is no discrimination on the grounds involving language, sex, race, colour, religion, political or another opinion, national or social origin, association with a national minority, property, birth or another status. Article 19 of the Indian Constitution talks about freedom of expression which means everyone has the right to express their own opinions and convictions freely by words of writing, printing, mouth, pictures or any other mode. Besides, anyone can express their ideas through communicable mode visible representation like signs, gestures etc.

Article 21 of the Indian Constitution provides the right to live with human dignity which denotes that every individual has the sacrosanct right to live with dignified life without any illegal discrimination and they are permitted to claim equal respect from any individual as well as from the State. Article 25 of the Indian Constitution confers the right to freedom of religion to every individual in India. It mainly talks about how all individuals are subject to public order, morality, health and other provisions such as all individuals are equally permitted to freedom of conscience and they have also the right to freely practice, propagate and profess religion. Although, it provides that this article would not dominate any occurring law and would not discourage the state from making any law concerning restriction and regulation of any financial, political or secular action connected with religious practice as well as conferring social reform and welfare.

OBSERVATION OF KARNATAKA HIGH COURT

In this controversy, the most important questions have been raised before the Court, is wearing of hijab an essential religious exercise in Islam? and can a state interfere in such matters? The court is also said to consider whether the wearing of hijab is the right to expression under Article 19(1)(a) of the Indian Constitution and whether restriction would be imposed only under Article 19(2)?[6] At first, a single bench of Justice Krishna S. Dixit has listed this issue thereafter, it referred the petitions to a larger bench for examining that “questions of seminal importance” are concerned.[7] The Hon’ble Karnataka High Court’s full bench comprising Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi and this bench has passed an interim order after hearing both sides that students would not wear any kind of religious dresses in educational institutions, regardless of their belief on religion until the final judgment of the issue.[8] The Hon’ble Court has also explained about the interim order that would involve those educational institutions where a uniform has been specified and this order would merely restrict on students.[9]

CONCLUSION

This Hijab controversy has been boiling for more than one month with revolts and counter exhibitions by Hindu and Muslim students in Karnataka. Now it has become a major controversial issue across the nation. In this era, this kind of incident is thought about the disharmony between different religious practices yet which goes against the spirit of the Indian Constitution. I would like to recommend on this aspect that we ought to be followed by law, not by emotions or passion. Have faith on the hon’ble court and abide by its upcoming verdict on the issue. Then actual Justice would happen and fraternity can become back to our society and the nation will be going towards peace and progress.

Author(s) Name: Subhajit Samanta (Bikash Bharati Law College, University of Calcutta)

References:

[1]  The Hindu, available at: https://www.thehindu.com/news/national/karnataka/watch-karnatakas-hijab-controversy-explained/article38397744.ece (last visited on 27.02.22).

[2] Ibid.

[3] Ibid.

[4] India Today, available at: https://www.indiatoday.in/india/story/karnataka-home-minister-speaks-out-on-hijab-row-says-common-uniform-helps-unite-students-as-indians-1908639-2022-02-04 (last visited on 27.02.22).

[5] Ibid.

[6] Live Law, available at:  https://www.livelaw.in/top-stories/hijab-ban-karnataka-high-court-judgment-reserved-religion-article-25-192833 (last visited on 27.02.22).

[7] Ibid.

[8] Ibid.

[9] Ibid.