BY SAM ALFAN.
Oshwal Academy has been ordered to allow Muslim students to perform midday (Dhuhr) prayers in the school compound.
While quashing a directive by the school to ban the prayers, Justice John Wakiaga declared the decision as unconstitutional and discriminative.
“A declaration is hereby issued that the decision of the Oshwal Acadamy limited to inhibit or disallow performance of (dhuhr) afternoon prayers by Muslim learners in the school indirectly discriminated against them on the basis of their religion,” declared the court.
Justice Wakiaga further declared that the policies issued by the school known as Guidelines and Regulations for Cooperative Engagement between the School and Parents, as null and void.
The judge said the rules were unconstitutional to the extent that they violate the rights and freedoms of the Muslim students.
The court found that the actions of the school as against the Muslim learners resulted in violation of their constitutional rights to freedom of worship, education and fair administrative action.
Mohamed Khan filed the petition on behalf of Muslim learners, challenging the school decision to ban Muslim students from praying within the school compound.
The parent sought the protection of the students fundamental right to education and the freedom of free exercise of religion.
Muslim students argued that prior to the Westgate terrorist attack in September 2013, the School allowed its Muslim learners to walk to the Parklands Mosque for Friday prayers over the lunch break.
On other days of the week, parents would pick their children for lunch and return them by 2 pm.
This arrangement allowed the learners to observe their prayers in their homes.
Following the terrorist attack, however, the practice was stopped for security reasons.
Parents engaged the school and it was agreed that they would collectively provide transport for the Friday prayers and return the learners within the lunch break. The arrangement continued until sometime in September 2017.
They stated that as a result of the foregoing, the students opted to observe their afternoon prayers within the school premises.
In May 2018, the school principal Joystan Chotai, gave a directive for Muslim pupils to stop praying within the school compound and stationed teachers in class rooms over the lunch hour to ensure observance of the directive.
The issue was raised at a parents’ forum in May 2018 but the School declined to allow the request by Muslim parents and further rejected a request for Muslim learners to pray anywhere within the school compound.
Subsequent correspondence between the School and the advocates of parents of Muslim children bore no fruit.
The School’s stand was that it does not accord special treatment to any faith and that no special treatment can be accorded to Muslim students.
They assert that it is on record that as part of the School routine in the assemblies and orientation, Jain prayers are performed, a classic example of double standards.
They further stated that in a circular dated January 12, 2019, the School unilaterally and without consultation with the parents, introduced new guidelines.
The rules were known as Guidelines and Regulations for Cooperative Engagement Between the School and the Parents.
Clause 3 of the Guidelines provides that the school is based on Jainism and the values thereof, that the school does not provide for the practice or engagement of any religious rites, rituals or expression, but rather provides an environment where all regardless of their faith can equally participate and engage in school community.
Further that the School will not provide spaces, teaching clubs or school resources to religious practice which led the petitioner and other Muslim parents to instruct their Advocates on record to seek the intervention.
They averred that by a letter dated 20.2.19 the School introduced guidelines and important information for parents relating to the common entrance test.
They stated that the School also introduced Terms for Continuity of Students which contains conditions precedent to the acceptance of a child at the School. Further that the terms also give the School the sole discretion to terminate or decline re-enrolment if it concludes that a parent or guardian interferes with the school’s accomplishment as a faith based academic oriented institution.
Further that parents were required to sign the transition form as a condition precedent. The Petitioners’ contention is that prior to February 2019, progression at the School had been automatic for all students.
School opposed the application through Chotai, academic consultant of the School. She claimed that the School which has been in existence since 1950 is founded on the Jain faith of which parents are made aware upon enrolment to the School.
Further that this fact is set out in the Students’ Code of Conduct.
Additionally, that despite the said foundation, no religious subject is taught in school but that the students are expected to recite the school prayer during the morning hours and are also known to recite the Navkaar Mantra and adhere to a vegetarian diet. Chotai further stated that save for the school prayer and vegetarian food, no preferential treatment is given to any mligion.
It was further averred that prior to 2013, parents would pick their children during lunch hour but denied that they would do so for the dhuhr prayers. Further that on January 16th, 2013, the Head of the School issued a notice to all parents and quardians to the effect that the students of junior and senior high school would not be allowed to leave school during the lunch hour unless escorted by parents.
She explained that that decision was necessitated by security concerns following the Westgate attack.
Chotai admitted the claims but said the petitioners represent only 40 out a population of 313 Muslim students at the School.
Chotai further deposed that the School is focused on the security and best interests of the children in compliance with the Constitution and has even adopted a Child Protection Policy.
Further that the need to ensure that the children are not segregated during lunch hour is aimed at protecting the security of the children. She denied the allegation that the School has deployed teachers to monitor the classrooms during lunch hour.
