Explained: Is it a constitutional right to wear hijab in schools?

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New Delhi : In Karnataka, the matter of banning girl students from wearing hijab in government educational institutions is in discussion these days. The dispute, which started from Udupi and Chikmagalur in January, gradually spread to some other districts as well. The protests started after Muslim girl students were barred from wearing the hijab to government educational institutions. The matter escalated when Hindu students and female students started wearing saffron gamchas or scarves in response. Seeing the growing controversy, the Karnataka government banned students from wearing such clothes which disturb equality, integrity and public order in schools and colleges. Politics has also started on this issue. Let us try to understand in the mirror of the right to religious freedom as enshrined in the constitution whether it is a constitutional right to wear hijab in schools.

Karnataka government order
Before proceeding further, let us understand the latest order issued by the Government of Karnataka on 5th February, in which emphasis has been given on following the dress code in government schools. The state government has invoked section 133(2) of the Karnataka Education Act 1983, stating that all students in government educational institutions shall follow the dress code. Private school administrations can take a decision regarding the dress based on their choice. The government order states that the Karnataka Education Act-1983 states that all students should wear uniform dress so that they look alike and behave in such a way that there is no discrimination.

Right to freedom of religion in the constitution
Article 25 to Article 28 of the Indian Constitution provides for the fundamental right to freedom of religion. First of all, Article 25 which gives freedom to all citizens of conscience and freely profess, practice and propagate religion. But this is not complete freedom, there are conditions on it. Article 25 (A) states – The State may impose restrictions on this right in the interest of public order, morality, health and other interests of the State. The constitution has recognized the wearing and carrying of kirpan as an integral part of Sikhism. Article 26 talks about the freedom to manage religious affairs. Under this, people of every religion have the right to conduct religious activities, establish, run religious institutions, etc., while living within the ambit of public order, morality and health. Article 27 provides that no person shall be compelled to pay any such tax if he is promoting a particular religion. According to Article 28, religious education cannot be imparted in any educational institution which is run entirely on the funds of the government. Religious education can be given with the consent of the people in the institutions recognized by the states (like madrassa, Sanskrit school etc.) but these education should be according to the syllabus prescribed by the government.

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Is it right to wear hijab in school?
Those supporting the wearing of hijab of girl students argue that they have full rights under the right of religious freedom. Another argument is also being made that everyone has the right to wear clothes of their choice. But this argument is a violation of uniform dress in educational institutions under the Karnataka Education Act 1983. Wearing a hijab can be considered a religious freedom only if the hijab is an integral part of Islam. This issue also went to the courts from time to time but no final decision has come on it yet. Even after the latest controversy in Karnataka, this matter has reached the court. A Muslim student has filed a petition in the Karnataka High Court seeking to declare wearing of hijab as a fundamental right under Articles 14 and 25. The hearing is to be held on February 8.

Is wearing hijab an integral part of Islam?
This issue was also raised in the Kerala High Court in 2016 in Aamna Basheer vs CBSE. Then the dress code fixed by CBSE to sit in the exam was challenged. Then the High Court considered wearing the hijab as an essential religious practice but did not quash the rules of CBSE. The court directed the CBSE that if anyone wants to appear in the exam wearing a hijab, he should be allowed but such students may be subjected to additional searches to check unfair means. But in the 2018 case of Fatima Tansin vs State of Kerala, a single bench of the Kerala High Court gave a different verdict on the issue. The court said that the collective rights of an institution would be given precedence over the individual rights of the petitioner.

Why the temple of education is the battlefield of religious fanaticism?
The issue of hijab in Karnataka has taken a completely political color. In protest against the demand for permission to hijab, Hindu students have started asking for permission to wear saffron garlands and scarves. The dispute related to whether the hijab is an integral part of Islam or not can end only after the decision of the Constitutional Court. But this issue has raised many questions. Why did the students coming to government schools without wearing hijab suddenly come wearing hijab till yesterday? What is the problem with uniform dress code for educational institutions? If purdah is a custom, then why not hijab? Without this, someone will start supporting this evil by blaming religious freedom even on untouchability. Everyone has the right to wear clothes of their choice but it is not so straightforward. If a girl child of 7-8 years of age or less is also seen wearing hijab, is it her choice or is it imposed on her. Belief in religion is one thing but religious fanaticism is another. The consequences of religious bigotry will not be right, no matter what religion this bigotry is associated with. At least the schools should not be made the battleground for the fight against religious fanaticism.

[Attribution to NBT]

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