Muslim Education Society cites Kerala HC order in support of hijab ban, but ignores legal positions taken in verdict

The Kerala-based Muslim Educational Society (MES), which runs around 150 educational institutions, including professional institutions, arts and science colleges, higher secondary schools, and CBSE schools, has recently banned veils in all its institutions through a circular. The decision has led to a debate on whether this amounts to curbing “freedom of conscience and free profession, practice and propagation of religion,” which is one of the fundamental rights guaranteed by the Constitution of India to its citizens. To support its decision, the MES’ circular cites a Kerala High Court order. The circular states, “According to the high court order, all managements retain their right to decide on dress code. We will not allow students or teachers to cover their faces with face veil from the coming academic year”. The judgment that the circular referred to was passed by Justice A Muhamed Mustaque of the Kerala High Court on 4 December, 2018. In this case, two Muslim students of Christ Nagar Senior Secondary School named Fathima Thasneem and Hafzah Parveen had moved the high court with a writ petition seeking direction to the school to allow them to wear “headscarf as well as full sleeve shirts,” instead of the dress code prescribed by the school. [caption id=“attachment_2750486” align=“alignleft” width=“380”]  Representational image. Getty Images[/caption] The court noted, “One has the liberty to follow his own notions and convictions in the matter of dress code.” However, the court also stated that “when such a right is claimed against a private entity which is also having equal fundamental right to manage and administer an institution, the court has to balance the competing fundamental rights and decide the issue.” The judgment cited an important Supreme Court judgment to further this argument. It says, “The apex court in Asha Renjan and Others v. State of Bihar and Others accepted the balance test when competing rights are involved and has taken a view that individual interest must yield to the larger public interest. Thus, conflict to competing rights can be resolved not by negating individual rights but by upholding the larger right to remain, to hold such a relationship between the institution and students (sic)”. The court, citing various other judgments, decided that the writ petition filed by the two students could be allowed. “I am of the considered view that the petitioners cannot seek imposition of their individual right as against the larger right of the institution. It is for the institution to decide whether the petitioners can be permitted to attend the classes with the headscarf and full sleeve shirt. It is purely within the domain of the institution to decide on the same. The court cannot even direct the institution to consider such a request”, reads the judgment. The judgment dwells in detail about maintaining a fine balance between the “individual interest” of a person and the “larger interest” represented by a community, group or an institution. “Fundamental rights are either in nature of the absolute right or relative right. Absolute rights are non-negotiable. Relative rights are always subject to the restriction imposed by the Constitution. The religious rights are relative rights (see Article 25 of the Constitution). In the absence of any restriction placed by the State, the court need not examine the matter in the light of restriction under the Constitution. The court will, therefore, have to examine the matter on a totally different angle on the conflict between fundamental rights available to both. The court has to examine the prioritisation of competing fundamental rights in a larger legal principle on which legal system function (sic) in the absence of any constitutional guidance in this regard. The Constitution itself envisages a society where rights are balanced to subserve the larger interest of the society. In every human relationship, there evolves an interest. In the competing rights, if not resolved through the legislation, it is a matter for judicial adjudication (sic)”, the judgment reads. It adds, “The court, therefore, has to balance those rights to uphold the interest of the dominant rather than the subservient interest. The dominant interest represents the larger interest and the subservient interest represents only individual interest. If the dominant interest is not allowed to prevail, subservient interest would march over the dominant interest, resulting in chaos. The dominant interest, in this case, is the management of the institution. If the management is not given free hand to administer and manage the institution, that would denude their fundamental right. The constitutional right is not intended to protect one right by annihilating the rights of others. The Constitution, in fact, intends to assimilate those plural interests within its scheme without any conflict or in priority. However, when there is a priority of interest, individual interest must yield to the larger interest. That is the essence of liberty”. However, it is important to look at the reasons given in the circular for its decision. According to a report in The Times of India, the circular states, “MES, that aims at the social and cultural progress of the Muslim community insists that the students, even while maintaining high standards in curricular and extra-curricular activities, do follow certain decorum in the dress code too. We should discourage all undesirable practices on the campuses. Dresses that are unacceptable to the mainstream society — whether they are modern or religious — cannot be promoted”. While the circular relied upon the above discussed judgment, it failed to appreciate its finer points of law and the fact that it does not rest upon subjective and vague reasoning, like something not being acceptable to “mainstream society”.