COURT RULINGS ON HIJAB

COURT RULINGS ON HIJAB

TOPIC: Polity

Context- In its order prohibiting hijab in government educational institutions, Karnataka has cited rulings by three HCs.

• The order cited three cases decided by different High Courts to hold that banning the headscarf is not violative of fundamental rights, particularly freedom of religion.

Concept-

What are these three cases?

• The three cases cited in the government order are from the Kerala, Bombay and Madras High Courts.
• Kerala High Court, 2018: In Fathima Thasneem v State of Kerala, a writ challenged the school’s denial of permission to wear full-sleeved shirts and a headscarf as it was against the prescribed dress code. Kerala High Court ruled in favour of the school which was a Christian Missionary school, a minority educational institution.
  • The court said that “collective rights” of the school must be given primacy over individual rights of the students.
  • However this case refers to a minority education institution as opposed to a government educational institution. Constitutionally, minority educational institutions have greater freedom to regulate their affairs.
• Bombay High Court, 2003: In Fathema Hussain Sayed v Bharat Education Society, a minor student had challenged the school’s prescribed dress code that did not allow the wearing of a headscarf. Since the minor girl attended an all-girls school, the Bombay High Court ruled against her, despite the argument that wearing a headscarf is an essential religious practice which must be protected under the Constitution.
  • The High Court referred to relevant verses from the Quran and held that the book did not prescribe wearing of a headscarf before other women.
• Madras High Court, 2004:Sir M VenkataSubba Rao, Matriculation Higher Secondary School Staff Assn v Sir M VenkataSubba Rao, Matriculation Higher Secondary School was a case challenging the dress code imposed by the management of a school on teachers.
  • Although the Madras High Court held that the imposition of the dress code had no statutory backing, it refused to interfere on the grounds that the teachers “should set high standards of discipline and should be a role model for the students”.

Freedom from Attending Religious Instructions:

• Article 28 states that:

1. No religious instruction shall be provided in any educational institution wholly maintained out of State funds.
2. Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution.
3. No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.