AISHAT SHIFA VS.THE STATE OF KARNATKA(2022 s.c 842)
| 1.citation | 2022 s.c 842 |
| 2.Date of judgement | 12 oct 2022 |
| 3.case no | 007095-2022 |
| 4.Court | Supreme court of india |
| 5.Case type | Civil appeal no.7095 2022 |
| 6.Appellant | Aishat shifa |
| 7.Respondent | State of karnataka |
| 8.Bench | Honble mr.justice HEMANT GUPTA |
| 9.Referred | Art.14,19,21,22,26,28 |
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 5th 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 15th 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 2nd and 3rd 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 21st 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.
| CONCLUSION. |
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.
