Constitutional Provision for Curbing Freedoms

The Karnataka High Court is hearing a challenge to the constitutionality of the state government’s ban on students wearing a hijab in educational institutions.

There was an argument on whether the state can justify the ban on the ground that it violates ‘public order’.

What is ‘Public Order’?

• Public Order means the state of normality and security that is needed in a society and that should be pursued by the state in order to exercise constitutional rights and to thus benefit a harmonious development of society.
• Public order is normally equated with public peace and safety.

Constitution on Public order:

• Article 25 of the Constitution guarantees to all people’s right to freedom and conscience and the right freely to profess, practise and propagate religion subject to public order, morality and health.
• Public order is one of the three grounds on which the state can restrict freedom of religion.
• Also, Public order is one of the grounds to restrict free speech and other fundamental rights.
• According to List 2 of the Seventh Schedule of the Constitution, the power to legislate on aspects of public order rests with the states.

How does ‘Public Order’ relate to the hijab ban?

• According to the government order issued on February 5 under the Karnataka Education Act, 1983, “public order” is one of the reasons for not allowing students to wear a headscarf in educational institutions along with “unity” and “integrity.”
• The government order states that while individual college committees are free to determine the uniform, in the absence of such rules the government order banning the headscarf would apply. 

Judiciary on Public Order:

• In Ram Manohar Lohia vs State of Bihar (1965), the Supreme Court held that in the case of ‘public order’, the community or the public at large have to be affected by a particular action. “The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large.”