A New Shift The Hijab Case, raised grave concern on women Modesty

A New Shift The Hijab Case, raised grave concern on women Modesty

[SMT RESHAM AND ANOTHER VS. STATE OF KARNATAKA AND OTHERS] WP NO. 2347/2022

Judge’s – Chief Justices Ritu Raj Awasthi, Justices Krishna S Dixit and Justices J.M.Khazi

Introduction: 

Why even dealing or understanding more different cases on Hijab-wearing, we are still facing difficulties in understanding, its extent. And demanding, it as a Fundamental Right under different Articles provided in our Constitution. As we all know about the recent Karnataka Hijab Case in which, the Karnataka High Court has pronounced its verdict, that “wearing a Hijab is not an essential religious practice in Islam and that the School uniform is not violative of Fundamental Rights and held it to be a reasonable restriction” and various decrees or judgement on other Issues in this present case.

So, we will be dealing with those issues and then we talk about “Is Karnataka High Court Judgement is somewhere harming the Modesty of a woman or not?”

How arguments become an Issue?

The Hijab case came forward on 1st January 2022 at Government PU college at Udupi,  where six girls were not given entry to the classroom because they had worn the Hijab and they held a Press Conference and said they have permission despite that college authority is not giving them entry to the college they started protesting against college authority’s with sooner become a statewide issue and at the same time different community is started protests and counted those girls demands by wearing Saffron scarf.

What was the college authority said

The principal of PU College said that in the span of 35 years we have never seen any student wearing Hijab enter in the classroom and come inside the Institution and we have no such rules that allow a student in a classroom with a Hijab. Rudre Gowda, the principal of Udipi college said that students who used to wear it on campus entered the classroom after removing the scarf.

The order directs the College Development Committees all over the State to prescribe ‘Student Uniform’, presumably in terms of Rule 11 of Karnataka Educational Institutions (Classification, Regulation & Prescription of Curricula, etc.) Rules, 1995.” [1]

The matter Reached the Karnataka High Court

Some petitions were filed in the Karnataka High Court on January 31, in which Muslim students sought the right to wear the Hijab in the classrooms under Article-14, 21 and 25 of the constitution.  

Karnataka High Court passed an interim order, thinking about all pending petitions, and restrained all the students from wearing saffron shawls, scarves, Hijab and any religious flag within the classroom.

What the government said

The Karnataka government has banned the entry of children who come inside the classroom wearing a Hijab. They have done so under section 133 of the Education Act, 1983 passed on February 5th   the government reserve the right, that they can issue directions to schools and colleges to maintain the public peace. 

ISSUES OF THE CASE [2]

  1. Whether wearing Hijab is a part of essential religious practice in the Islamic faith is protected under Article 25 of the Constitution?

Outcome –

“In view of the above discussion, we are of the considered opinion that wearing of Hijab by Muslim women does not form a part of essential religious practice in the Islamic faith.”[3]

2.  Whether the prescription of the School Uniform is not legally permissible as being violative of the petitioner’s fundamental rights inter alia guaranteed under Article 19(1)(a) and Article 21 i.e. Right to Privacy of the Constitution?

Outcome –

          “In view of the above, we are of the considered opinion that the prescription of school uniform is only a reasonable restriction constitutionally permissible which the students cannot object to.”[4]

  1. Whether Validity of the Government Order dated 5thFebruary 2022 providing for the prescription of dress codes in educational institutions?

Outcome –

“In view of the above, we are of the considered opinion that the government has power to issue the impugned Order dated 05.2.2022 and that no case is made out for its invalidation.”[5]

  1. Whether any case is made out in WP 2146 of 2022 sought the issuance of direction for initiating disciplinary inquiry against respondents 6 to 14 and for issuance of quo warranto against respondents 15 and 16?

 

Outcome –

In view of the above, we are of the considered opinion that no case is made out in W.P. No.2146/2022 for issuance of a direction for initiating disciplinary enquiry against respondents Nos. 6 to 14. The prayer for issuance of Writ of Quo Warranto against respondent Nos. 15 and 16 is rejected being not maintainable.” [6]

The Judgement by the Hon’ble Karnataka High Court: “Wearing of Hijab is not a  part of essential religious practise in Islam”….Modesty of Women’s

  • Modesty has not a Fundamental or universal definition, it is different for some people in some other sense.

“Modesty isn’t about Covering Up our

Bodies,

Because their bad, modesty isn’t about

Hiding ourselves……. its

About revealing our Dignity”

By Jessica Rey

  • For some communities “Basically modesty is a standard of what is ok to wear and what isn’t ok to wear.”

A problem that arises is that everyone has a different view of what modesty IS?

                     And, to be modest doesn’t only pertain to the clothes on your body but also the way, we act, In a way that is unassuming, polite, kind and humble.
(WHEN A WOMAN VEILS HER BODY IN MODEST CLOTHING, SHE IS NOT HIDING HERSELF FROM MEN, ON THE CONTRARY, SHE IS REVEALING HER DIGNITY TO THEM.)[7]

 

For some Muslim girls and women, Hijab is worn by them not because it is compulsory in the Quran, and it was provided as a part of modesty. They wear the Hijab to secure their privacy from unrelated males, even though it is not compulsory in Quran, and Quran only prescribes modest attire and specifically in Surah 24:31, the genitals and the breasts are required to be covered.

Yes, we can say that every religion has its acceptance of Modesty or dressing sense for showing their behaviour, nature, culture or “Maan – Maryada” and wearing a Hijab is one of those religious parts. Even though it is not compulsory in the Holy Quran to wear a Hijab, people of Islamic religion especially, women have believed, that wearing a Hijab is a part of modesty in Islamic culture. Dressing according to our surrounding or according to our customs is not a bad thing, wearing a dress which may be not accepted at every place but, that might be a part of modest for a particular community. Also, women need not be in our face because of their body or dressing sense, it must be their choice of liberty and they must have freedoms. And we cannot force any women or gender to follow the modest culture to wear the clothes. As we talked they must be a liberal choice for themselves. Women need to be comfortable in their skin – regardless of the amount of clothing they have on. And if, we talked about modesty then, it never set a limit on wearing of dress; it is a lot about gaining the individual dignity.

 

Why especially women, are defending the Hijab as a choice and not for the sake of protecting their Modesty, they want to wear a Hijab as a means of protection from men. So, in this way how it would be right for them, how they become ‘liberal’, ‘progressive’, fear-free and how we say we are working toward women empowerment. If they are demanding it, then it should be liberal demand and not because of fear or threat from a particular gender. Most of these women don’t wear the Hijab themselves or will ask their girl child to wear it.[8]

Modesty for women is not a concept that a school of all places needs to support or endorse.[9] A school must be a place or medium to deconstruct misogyny and remove the difference of religious biases from childhood and not tacitly promote it.

Education may not be able to teach uniformity among the students at home or create a steadiness atmosphere but the least it can do is to provide a free environment to its pupils or students while in school.[10] And if, we bring religious things on educational instructions then, yes it will hamper the steadiness of the overall development. Schools have their uniform due to obvious reasons, wearing a uniform or similar dress in schools brings pride and discipline to young students. Who doesn’t remember each other by their religion and even religion does not matter for them at those levels, which brings educational uniformity among them.

And, if schools or some colleges don’t want to allow any signs of faith, that is up to that institution. If we dislike its rules, we can move to an institution where we are allowed to wear our symbols.[11]

Conclusion 

Modesty is nothing that talks about dressing sense; it is all about empowering our dignity and the nature, culture or Maan-Maryada which shows the identity or behaviour of an individual. And once we have not a compulsion for following any particular way of dressing and it is selective, not binding in any community or religion then, following it as modest value is not harming modesty in no sense. The hijab case doesn’t affect the modesty of women because; Quran is not binding on wearing the Hijab.

 

[1]Devika Sharma, 16 pointer report on why wearing of Hijab is not a part of essential religious practice in Islam: Karnataka High Court unfolds,SCConline, (Mar 16, 2022), https://www.scconline.com/blog/post/tag/karnataka-high-court/

[2]  IN THE HIGH COURT OF KARNATAKA AT BENGALURU, (Mar 15, 2022), https://drive.google.com/file/d/1o-DwI7PLX6wHF2S8m78ntlG7CYw7CDNN/view

[3] Page-87 of the judgment.

[4] Page-109 of the judgment

[5] Page-121 of the judgment

[6] Page-126 of the judgment

[7]  Brandi Young, pinterest,( https://www.pinterest.com/pin/514184482427261230/ )

 

[8] SHIVANI GUPTA, news18, Straight with Shivani: Hijab Not Gender-neutral Element of Religion, It is Imposed on Women,( FEBRUARY 11, 2022, 14:38 IST),

https://www.news18.com/news/opinion/hijab-row-piety-and-modesty-are-not-the-same-4755410.html ( Para -9th)

[9]SHIVANI GUPTA, news18, Straight with Shivani: Hijab Not Gender-neutral Element of Religion, It is Imposed on Women,( FEBRUARY 11, 2022, 14:38 IST),  https://www.news18.com/news/opinion/hijab-row-piety-and-modesty-are-not-the-same-4755410.html

 

[10]SHIVANI GUPTA, news18, Straight with Shivani: Hijab Not Gender-neutral Element of Religion, It is Imposed on Women,( FEBRUARY 11, 2022, 14:38 IST),  https://www.news18.com/news/opinion/hijab-row-piety-and-modesty-are-not-the-same-4755410.htm

[11]SHIVANI GUPTA, news18, Straight with Shivani: Hijab Not Gender-neutral Element of Religion, It is Imposed on Women,( FEBRUARY 11, 2022, 14:38 IST),  https://www.news18.com/news/opinion/hijab-row-piety-and-modesty-are-not-the-same-4755410.html

Author: Sonu Anand,
The Law School, ICFAI University, Jharkhand/ 2nd Year Law Student

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