Recently, the Karnataka High Court has been considering a challenge to the constitutionality of the state government’s prohibition on students wearing the hijab in educational institutions. The arguments in the case revolve around whether the state can justify the ban on the grounds of it violating ‘public order’. This article aims to simplify and walk you through this crucial issue.
Understanding Public Order
Public order generally equates with maintaining public peace and safety. It serves as one of the three bases upon which the state can constrain religious freedom. According to Article 25 of the Constitution, all individuals are guaranteed the right to religious freedom, including the rights to conscience and unrestrained professing, practicing, and propagating of religion. However, these rights are subject to limitations in the interest of public order, morality, and health.
In addition to religious freedom, public order also grounds the restriction of free speech and other fundamental rights. As per the State List (List 2) of the Seventh Schedule of the Constitution, states hold the jurisdiction to legislate on aspects related to public order.
Interpretation of Public Order by Courts
The interpretation of what inevitably affects public order is circumstantial, influenced by the state’s viewpoint. Courts have typically interpreted it to signify something affecting the community at large rather than a few individuals. In the context of ‘public order’, the Supreme Court held in Ram Manohar Lohia vs State of Bihar (1965) that a particular action must affect the community or public at large. Contravention of the law, although affecting order, can only be said to impact public order significantly if it influences the broader public or the community.
From a broader perspective, imagine three concentric circles: the largest representing ‘law and order’, the next ‘public order’, and the smallest ‘security of State’.
Relevance of Public Order to the Hijab Ban
The mandate issued on February 5 under the Karnataka Education Act, 1983, cited ‘public order’ as one of the reasons for disallowing students to wear the hijab at educational institutions. This mandate also referenced ‘unity’ and ‘integrity’ as considerations. A multitude of courts previously prescribed dress codes for minorities in public institutions.
Arguments from Petitioners
Petitioners have declared that every breach of law and order does not equate to ‘public order’. They see ‘public order’ as a heightened form of disturbance compared to a typical law and order issue. The petitioners have challenged the state to demonstrate how the mere act of wearing a hijab by students could escalate to a public order issue.
The Stand of Karnataka Government
Karnataka’s Advocate General has countered that the government order does not specifically mention “public order”. He suggested that the petitioner’s interpretation of the order could be due to a translation error. In its original language, Kannada, the order uses the phrase “sarvajanika suvyavasthe”.