In Nadha Raheem v. C.B.S.E, 2015 SCC OnLine Ker 21660, Kerala High Court’s Single Judge Bench in the year 2015 dealt with petitions by two female students belonging to the Muslim community contending that the dress code prescribed by the Central Board of Secondary Education (C.B.S.E) of wearing half sleeve kurta/salvar would prejudice them, as their religious custom mandates them to wear a headscarf and also full sleeve dresses.
In the said case, the Standing counsel for C.B.S.E submitted that the dress code was specified by the C.B.S.E not intending to harass any student, on the contrary, to ensure that no untoward incident shall occur which would lead to cancellation of the examination.
The Standing Counsel had placed the Supreme Court decision by highlighting the extracts which revealed the indigenous methods by which copying was resorted to by means of electronic gadgets, wired to the body itself, and camouflaged by full sleeve dress and so on and so forth.
The Single Judge Bench of the Court noted that only two students came up before the Bench.
In Court’s opinion, the dress code could not be said to be wrong or improper.
However, Justice K. Vinod Chandran observed that,
“…it cannot be ignored that in our country with its varied and diverse religions and customs, it cannot be insisted that a particular dress code be followed failing which a student would be prohibited from sitting for the examinations.”
Hence, the Court opined that no blanket orders were required in the petitions apprehending that they would be prohibited in writing the examination for the reason of their wearing a dress conducive to their religious customs and beliefs.
In the stated facts and circumstances of the case, High Court had directed that the petitioners who intended to wear a dress according to their religious custom, but contrary to the dress code, shall present themselves before the Invigilator half an hour before the examination and on any suspicion expressed by the Invigilator, shall also subject themselves to any acceptable mode of personal examination as decided by the Invigilator, but however, carried on only by an authorised person of the same sex.
If the Invigilator requires the headscarf or the full sleeve garments to be removed and examined, then the petitioners shall also subject themselves to that, by the authorised person, High Court stated.
Kerala High Court had also asked the C.B.S.E to issue general instructions to its invigilators to ensure that religious sentiments be not hurt and at the same time discipline was not compromised.
In the year 2016, the Kerala High Court while deciding the case of Amnah Bint Basheer v. CBSE, 2016 SCC OnLine Ker 41117, addressed a matter wherein prescription of dress code for All India Pre-Medical Entrance Test-2016 was questioned by the parties who professed Islam.
The ground on which the parties had challenged the dress code was the violation of the fundamental right as guaranteed under Article 25(1) of the Constitution of India.
The parties urged the Court to examine religious freedom in the light of the constitutional scheme.
Kerala High Court observed that,
The State cannot interfere with the practice of religious affairs which would obliterate his religious identity. The environment in which one has to live is determined by the patterns of the idea formed by his conscience subject to the restrictions as referred under Article 25(1).
Adding to the above observation, in this decision, the Bench also stated that it was open for the State to regulate or make laws consistent with the essential practice of religion. However, while making a regulation or a law, the true import of the essential practice shall not be supplanted.
Petitioners case was that Shariah mandates women to wear the headscarf and full sleeve dress and therefore, any prescription contrary would be repugnant to the protection of the religious freedom.
“..the analysis of the Quranic injunctions and the Hadiths would show that it is a farz to cover the head and wear the long sleeved dress except face part and exposing the body otherwise is forbidden (haram). When farz is violated by any action opposite to farz that action becomes forbidden (haram).”
“The right of women to have the choice of dress based on religious injunctions is a fundamental right protected under Article 25(1), when such prescription of dress is an essential part of the religion.”
Giving significance to the Board’s attempt of ensuring transparency and credibility of examinations, Court stated that to harmoniously accommodate the competing interest without there being any conflict or repugnancy. The interest of the Board can be safeguarded by allowing the invigilator to frisk such candidates including by removing scarf. However, safeguard has to be ensured that this must be done honouring the religious sentiments of the candidates.
In 2018, Kerala High Court in Fathima Thasneem v. State of Kerala, 2018 SCC OnLine Ker 5267, while addressing the petition filed by Muslim girl students with the plea to be allowed to wear the headscarf as well as full sleeve shirt which was inconsistent with the prescribed dress code by the school they were studying in, observed that as one has the liberty to follow its own notions and convictions in regard to the dress code, in the same manner, a private entity also has the Fundamental Right to manage and administer its institution.
Justice A. Muhamed Mustaque while referring to the decision of Amnah Bint Basheer v. CBSE, 2016 SCC OnLine Ker 41117, stated that it is the Fundamental Right of the petitioners to choose the dress of their own choice.
Further, the Court held that it had to balance rights to uphold the interest of the dominant rather than the subservient interest and in the facts, in hand, the management of the institution was the dominant interest.
“Where there is priority of interest, individual interest must yield to the larger interest. That is the essence of liberty.”
Hence the Kerala High Court held that the Muslim girl students could seek the imposition of their individual rights as against the larger right of the institution. Therefore, it was for the institution to decide whether the petitioners could be permitted to attend the classes with the headscarf and full sleeve shirt.
Presently the Karnataka High Court has been dealing with a somewhat similar situation, wherein the challenge was with regard to the insistence of certain educational institutions that no girl students shall wear the hijab (headscarf) whilst in the classrooms.
On 10-2-2022, the High Court on being pained by the agitations and closure of educational institutions expressed that
“…ours is a country of plural cultures, religions & languages. Being a secular State, it does not identify itself with any religion as its own. Every citizen has the right to profess & practise any faith of choice, is true.”
The Bench of Ritu Raj Awasthi, CJ and Krishna S Dixit and JM Khazi, JJ., temporarily restrained all the students regardless of their religion or faith from wearing saffron shawls (Bhagwa), scarfs, hijab, religious flags or the like within the classroom, until further orders.
The proceedings in the said matter are still ongoing and the Court is yet to pronounce its decision on the matter.
