Public order: A constitutional provision for curbing freedom

What is the news?

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 arguments were based on whether the state can justify the ban on the ground that it violates ‘public order’.

What is Public Order?

Public order is one of the three grounds on which the state can restrict freedom of religion.

Public order is also one of the grounds to restrict free speech and other fundamental rights.

Note: 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.

Who has powers to legislate on 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 has public order been interpreted by courts?

The courts have broadly interpreted Public Order 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.

Note: 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’.

How is the public order issue related to the Hijab Ban?

Karnataka’s 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 wearing of a hijab by students could constitute a public order issue. 

Source: This post is based on the article “Public order: A constitutional provision for curbing freedom” published in Indian Express on 20th February 2022.