AISHAT SHIFA VS.THE STATE OF KARNATKA(2022 s.c 842)

 AISHAT SHIFA VS.THE STATE OF   KARNATKA(2022 s.c 842)

Facts of the case. 

The year 2022 began with conflicts on the basis of religious  clothing. The matter commenced with the restriction of entry of  Muslim girls wearing the hijab into the college in Udupi where she  was enrolled. The girls even offered to use the uniform’s dupatta  to cover their heads, arguing that they did not need to put on a  separate hijab of a distinct shade or material, but the college  refused. The university allowed them to put on the hijab on  campus but did no longer allow them into lessons. It was claimed  that the said attire was against the school’s uniform policy thereby  not allowing them to attend their classes. Over the subsequent  weeks, this dispute was witnessed in other schools and colleges  across the country with groups of Hindu students staging counter protests with the claims of permission to wear saffron scarves to  educational institutions. On 5^th February, the Karnataka  Government issued an order stating that uniforms ought to be  worn compulsorily where policies exist and no exception may be  made for the carrying of the hijab. Numerous educational  institutions stated this order and denied entry to Muslim ladies  carrying the hijab. Petitions had been filed within the Karnataka  High Court on behalf of the aggrieved college students. On 10  February, the High Court issued an interim order restraining all  college students from wearing any form of religious apparel to  educational institutions. The order was made applicable in all  schools and schools across Karnataka, with college students, and  in some cases instructors, being requested to eliminate hijabs and  burqas outside of the institutions’ premises. After a hearing of  about 23 hours spread over 11 days, the Court passed its verdict 

on 15^th March 2022, upholding the regulations on hijab. The court  ruled that the hijab isn’t a vital religious Islamic practice. 

HINDU PROTESTS. 

The saffron protests regained momentum in February, being  seen at the Government PU college in Kundapura, Bhandarkars’  Arts & Science College within the city and Dr. BB Hegde  University near Udupi on 2^nd and 3^rd February respectively. At the  final location, the saffron protesters successfully blocked the  hijab-sporting Muslim college students from entering the college. 

GOVERNMENT ACTION. 

In February pointing out that the uniforms mandated by means of  the national government, the faculty management or college  improvement committees must be worn compulsorily. It was  further stated that college students following religious tenets  adversely impacted “equality and team spirit” in colleges. 

ISSUES RAISED. 

The Karnataka High Court has provided answers to the following  questions in its judgement: 

1. Whether wearing a hijab/headscarf is a part of Essential  Religious practice in the Islamic Faith protected under Article  25 of the Constitution. 

2. Whether prescription of school uniforms is not legally  permissible, as being violative of petitioners’ Fundamental  Rights inter-alia guaranteed under Article 19(1)(a), (i.e., 

freedom of expression) and 21 (i.e., privacy) of the  Constitution. 

3. Whether the Government Order dated 05.02.2022 apart from  being incompetent issued without application of mind and  further manifestly arbitrary and therefore violates Articles 14  and 15 of the Constitution? 

4. Whether any case is made out in Writ Petition Number 2146  of 2022 for issuance of a direction for initiating disciplinary  enquiry against Respondent No. 6 to 14 and for issuance of  a Writ of Quo Warranto against Respondent No. 15 and 1 ARGUMENTS. 

The Karnataka High Court upheld the ban on hijab in educational  institutes on 15th March 2022. The court held that the hijab is not  always a vital religious practice under Islam and, hence, is not  covered under Article 25 of the Constitution of India which  guarantees the citizens the fundamental right to exercise their  religion. The High Court carried out independent research on the  matter by referring to “The Holy Quran: Text, Translation and  Commentary” by Abdullah Yusuf Ali. This write-up was also  referred to by the Supreme Court in the case of Shayara Bano.  Ali’s commentary held that the Quran encouraged hijab most  effectively to cope with the instances of “molestation of harmless  women” at certain times during the Jahiliya (instances of pre Islamic “lack of knowledge” prior to Islam) as a measure of social  security. It further states that the hijab is not a religious practice  and is much less vital to the Islamic religion. Y-category safety  was provided to the Karnataka High Court judges who delivered  the hijab verdict and two human beings were arrested for  threatening speeches.

The Supreme Court of India rejected the petitions demanding  urgent hearings on the instant matter. Advocates were asking the  Apex Court to urgently hear the matter so that the female  students could be permitted to enter the classes and attend their  lectures. These requests were rejected by the Chief Justice of  India, N. V. Ramana, who stated that the tests had nothing to do  with this matter and that the issue must not be sensationalized. 

On 26th April, CJI Ramana assured that the pleas challenging the  Judgement of the High Court would be heard. A division bench of  the Supreme Court passed a split decision on the matter in  October 2022. While Justice Hemant Gupta upheld the judgement  of the High Court, Justice Sudhanshu Dhulia passed a verdict  opposing that of the High Court. The case was further elevated for  consideration by the Chief Justice of India and reference to a  larger bench due to the balanced judgement passed by the  division bench. 

HIGH COURT JUDGEMENT. 

∙ The Karnataka High Court made three primary findings in its  judgment. 

∙ Essential practice– It held that the use of a hijab is not  essential to the practice of Islam. 

∙ Thus, the right to freedom of religion was not violated. ∙ Right to freedom– It ruled that there exists no substantive  right to freedom of expression or privacy inside a classroom  and, therefore, these rights were not at stake here. ∙ In High Court’s belief, classrooms are “qualified public  spaces” where individual rights must give way to the  interests of “general discipline and decorum”.

∙ State discrimination– It held that the ban did not stem  directly out of the government’s order, which only called for a  uniform dress code to be prescribed by the State or school  management committees. 

∙ Hence, the law did not discriminate, either directly or  indirectly, against Muslim students. 

JUDGEMENT OF S.C 

SC Delivers Split Verdict in Hijab Ban Case 

On October 13th, 2022 the Bench delivered a split verdict in the Hijab Ban case. Justice Hemant Gupta upheld the ban, stating that it applied equally to students from all religious communities. Further, the Rights to Religion, Privacy, Dignity and Liberty could be reasonably restricted to maintain discipline and unity in secular schools and the State was not curbing any students’ Right to Education. 

Justice Sudhanshu Dhulia held that the ban was unconstitutional and had a more emotive response. He focused on the plight of girl children in educational institutions and stated that the ban would hinder their access to secular education and violates their Right to Equality by imposing an additional burden on them. On the Right to Religion, he said so long as the belief is ‘sincere’ there is no justifiable reason for the Hijab ban and all beliefs must be reasonably accommodated. 

The onus is now on the Chief Justice of India to assign the case to a 3-Judge Bench so fresh hearings can take place. Whether CJI U.U. Lalit will assign the case or his successor, Justice Chandrachud, will do so remains to be seen. In all likelihood, most of the arguments made before Justices Gupta and Dhulia will be posed anew to the 3-Judge Bench.

CONSEQUENCES OF THE JUDJEMENT. 

Similar to the protests, there have been numerous instances of  violence. Allegedly, these were a result of the victims’ social  media posts indicating permission to enter the institutions with  hijabs. Several members of the public were also attacked by  mobs and killed for posting anti-hijab posts on social media. 

On 21^st February, a Bajrang Dal member who took part in the  anti-hijab protests with the Hindu college students was found  murdered in the Shivamogga district. The police state that this  could have also been a consequence of his prior actions with  regard to the Hijab Row across the State. In furtherance, his  death is also related to his involvement in at least 5 cases of  attempt to murder in the past. These cases that he was accused  of are believed to be of religious overtones. While the  investigations are still ongoing, the Home Minister claims no  relation between the protests and the murders. Violence grew  with instances of stone-pelting during his funeral procession and a  fatwa was also issued against him by a Facebook group named  “Mangalore Muslims.” The injuries sustained by the members  taking part in the procession retaliated to the stone-pelting by  burning automobiles and throwing stones at various commercial  establishments and houses of the Muslims in the area. 

3 people were arrested among the 5 suspected of the murder.  Sections of the Unlawful Activities (Prevention) Act (UAPA), 1967  have been invoked by the police, and the National Investigation  Agency (NIA) is now investigating the matter. Hazra Shifa, one of  the petitioners in the Karnataka High Court, alleged that her  brother Saif was beaten by a group of intoxicated people, who  disliked the statements made by her father to a local news 

channel in support of the hijab. She further claims that this group  consisted of “Sangh Parivar goons.” 

RELIGIOUS FREEDOM PROTECTED UNDER  CONSTITUTION. 

∙ The Preamble of the Constitution states that India is a  secular country. 

∙ Article 25 to 28 of Part-3 (Fundamental Rights) of the  Constitution confers Right to freedom of religion. 

∙ Article 25(1) – Guarantees the freedom of conscience and  the right freely to profess, practise and propagate religion. ∙ However, the state can restrict the right for grounds of public  order, decency, morality, health and other state interests. ∙ Article 26 – Talks about the freedom to manage religious  affairs subject to public order, morality and health. 

∙ Article 27 – States that no person shall be compelled to pay  any taxes for the promotion or maintenance of any particular  religion. 

∙ Article 28 – Talks about the freedom as to attendance at  religious instruction or religious worship in certain educational institutions. 

In S R Bommai vs Union of India (1994), the Supreme Court  said that the state should free itself from religious affinity. 

HOW HAS THE COURT INTERPRETED THE  ESSENTIAL RELIGIOUS PRACTICES TEST  IN THE PAST.

∙ In Bijoe Emmanuel vs State of Kerala (1986), students of  the Jehovah’s Witnesses denomination were allowed to  abstain from singing national anthem as it was claimed to  contradict their religious faith. 

∙ In 2004, the Supreme Court held that the Ananda Marga  sect had no fundamental right to perform Tandava dance in  public streets, since it did not constitute an essential  religious practice of the sect. 

∙ The Supreme Court of Canada in Multani case  (2006) upheld the right of a Sikh student to wear a Kirpan  while attending the class, without harming others. 

∙ In 2016, the Supreme Court upheld the discharge of a  Muslim airman from the Indian Air Force for keeping a  beard, distinguishing the case from that of Sikhs who are  allowed to keep a beard. 

QUESTIONS LIES. 

∙ The judgement results in any questions popping up in the  mind of people. 

o Would the same standards that banish a female hijab apply to a turban worn by a male Sikh student? 

o Can government colleges deny education to students  who are seen to be violating a uniform code? 

o Is the hijab or even a full covering in any manner violative of the process of imparting education? 

o Can a government committed to female education deny education to those it deems improperly dressed? 

o Should implementation of a dress code be prioritised over imparting education to all that seek it? 

∙ These questions will probably soon engage the attention of a  larger bench.

The Hijab Row in Karnataka is a complex issue that raised  important questions about religious freedom, human rights and  the role of the government in enforcing dress codes. While the  legal developments in the case of Aishat Shifa v. The State of  Karnataka and Ors. are ongoing, it is hoped that the outcome will  have far-reaching implications for the rights of Muslim women and  religious freedom in India. 

References 

https://www.iasparliament.com/current affairs/the-hijab 

The article is written by anika shafi dar of  vitasta law college,intern at legal vidhiya.

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