Public order: A constitutional provision for curbing freedoms

Karnataka Others

24-Feb-22

Context:

=> 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.

In the last hearing, the judges heard an argument on whether the state can justify the ban on the ground that it violates ‘public order’.

What is Public Order?

=> Article 25 of the Constitution guarantees to all persons the right to freedom and conscience and the right freely to profess, practise and propagate religion subject to public order, morality and health.

So, public order is one of the three grounds on which the state can restrict freedom of religion. It is also one of the grounds to restrict free speech and other fundamental rights.

Who has the power to legislate on aspects of public order?

=> Public order is normally equated with public peace and safety. 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 it relate to the hijab ban?

The state government has issued an order under the Karnataka Education Act, 1983.

As per this, “public order” is one of the reasons for not allowing students to wear a headscarf in educational institutions along with “unity” and “integrity.”

However, the petitioners have asked the state to show how the mere wearing of a hijab by students could constitute a public order issue. This is not a case where a religious practice involves a public gathering where dangerous weapons are paraded.

How has public order been interpreted by courts?

Courts have broadly interpreted it to mean something that affects the community at large and not a few individuals. 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.

Karnataka’s case:

One has to imagine three concentric circles, the largest representing ‘law and order’, the next representing ‘public order’ and the smallest representing ‘security of State’.”