The Karnataka High Court needs to be complimented for upholding the rights of academic institutions to prescribe a uniform for students and that the “hijab” is not essential to Islam.
The court, which heard various petitions that opposed the ban on hijab in some schools in coastal Karnataka, held that this head covering is not “essential” to Islamic practice. Also, the uniforms prescribed for students inside class is a “reasonable restriction” that does not contradict anyone’s right to religious freedom.
The second part of the judgement, that the ban on hijab by some institutions is a “reasonable restriction”, is more important than the first, which holds that hijab is not an essential part of Islam.
The three-judge bench, comprising Karnataka Chief Justice Ritu Raj Awasthi and justices Krishna S Dixit and J M Khazi, said: “We are of the considered opinion that the hijab is not an essential practice under Islam”, adding that the state government could allow its institutions to prescribe a uniform code without violating any rights under Article 25, which gives all citizens the right to freely practise or propagate religion according to their conscience.
Article 25 says that “freedom of conscience and free profession, practice and propagation of religion” shall be subject to “(1)public order, morality and health”. Further, this article does not prevent the state from “making any law… regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice…”.
The right of any Muslim girl or woman to wear the hijab is not taken away, as long as this is done outside class, where the laws of the institution hold precedence. The hijab can also be worn in institutions which allow them. This is why the High Court saw no reason to debar secular institutions from enforcing their own uniform code within their premises.
This much should have been commonsense, for if Muslims had been given the right to wear the hijab anywhere, it would have meant that sooner or later, the police or law-enforcement will similarly have to allow this exception to their own uniform and disciplinary routines. The Karnataka High Court has thus put a stop to the inexorable move to bring religion into every aspect of secular institutions of the state.
However, the statement that hijab is not essential to Islam is problematic, for this implies that the courts, rather than people belonging to a religious order, will determine what is essential to any religion. In many cases, religious activity cannot easily be separated from secular ones, and what is or is not essential to a religion cannot be decided by courts unless it is wholly repugnant to the idea of fundamental human rights or, specifically, child rights (eg, female genital mutilation).
By trying to separate secular activity from religious, the courts needlessly insert themselves into any effort to interpret religion, which is not needed. They should step in only in extreme cases, where religious activities are detrimental to human beings.
In other activities, religious institutions should be able to make their own decisions. For example, maintaining cleanliness in temples may involve awarding facilities management contracts to some maintenance outfits, but if this is seen as only a non-religious activity, the courts could well decide one day that non-Hindu organisations can clean Hindu temples. This cannot be universal right and every religious institution has the right to decide what is important and essential practice on its own.
Also, if courts are going to read scriptures before deciding the cases that come up before them, why bother reading the Constitution? It is not the job of courts to decide if Islam allows this or that, but what is relevant to a particular case. It must leave religious interpretation to people within a religion.
This apart, the Karnataka High Court judgement is a good one. And an important battle won against creeping Islamism in India. As an aside, it must also be pointed out that what the Muslims girl students protesting against the hijab ban were wearing not just wearing the head-scarf, but full body burkhas and face coverings. Upholding the ban would, in due course, have made it impossible to ban the full-face veil and burkha that many countries have banned in public places on grounds of security.
Jagannathan is Editorial Director, Swarajya. He tweets at @TheJaggi.
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