Karnataka Hijab Ban Part 1: An Unveiling

by | Feb 27, 2023

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About Almas Shaikh and Anjali Rawat

Almas Shaikh is a human rights lawyer from India. She is currently reading as a DPhil candidate at the University of Oxford and is a Barbara Mills Graduate Scholar in Law. She focuses on the role of intersectionality in Indian discrimination law, under the supervision of Professor Sandra Fredman. Anjali Rawat is a DPhil candidate at the Faculty of Law under the supervision of Professor Rachel Taylor and Professor Sandra Fredman. Her academic interests lie at the intersection of family law and constitutional rights. Her DPhil research focuses on the rights of women in the context of polygyny using the framework of substantive equality in a comparative study of India and South Africa. She is an Ambriti Salve Scholar at Exeter College and a Law Faculty Scholar. 

This is a 3-part blog on the Hijab ban case in India. Part 1 traces the journey of the Hijab ban order, from the first incident in Udupi to the delivery of the Supreme Court judgment.  Part 2 delves deeper into the (ir)relevance of the Essential Religious Practice Doctrine (ERP), while Part 3 focuses on how intersectionality theory plays a role in the determination of this case.  

Brief Facts

The hijab ban began in December 2021 when a group of hijab-wearing Muslim girls were denied entry into classrooms in PU College, Udupi, Karnataka. However, it soon affected several other junior colleges as protests grew against the ban, alongside counter-protests by Hindu students wearing saffron shawls. On February 5 2022, the State passed a Government Order (GO) prescribing that students must wear the uniform/dress code determined by the college committees, or in the absence of which they must wear clothes that do not threaten equality, unity, and public order. Both these actions were challenged before the Karnataka High Court (HC) as being discriminatory and violating the right of Muslim girls to wear hijabs within classrooms. The single judge referred the case to a 3-judge HC bench, which upheld the GO vide its judgment dated March 15 2022. The ban on hijab was found to be a constitutionally permissible restriction of fundamental rights of the petitioners.

Arguments Advanced

The main arguments of the petitioners before the HC (as well as the Supreme Court) were four-fold: that it violates the constitutional rights to religious freedom (Art. 25(1)) and the ERP; freedom of speech and expression (Art. 19(1)(a)); equality and non-discrimination (Arts. 14 and 15); and the right to life (Art. 21). The State retorted that the GO only directs school authorities to prescribe a uniform, and is as such religion-neutral. The State also contended that fundamental rights are not absolute, but remain subject to reasonable restrictions: thus, prohibiting hijabs inside the classroom constituted a reasonable restriction. Finally, they argued that hijabs are not part of ERP.

The Karnataka HC judgment held that the wearing of hijab is not an ERP and hence is not protected under Art. 25 of the Constitution, which guarantees the right to freely practice one’s religion. Thus, it rejected their claim on grounds that the wearing of hijab was not shown to be a practice that is essential to Islam. It held that wearing hijabs is a cultural rather than religious practice and is only recommendatory in nature [IX(ii), XII(i)].

The HC also rejected arguments which alleged the violation of other fundamental rights. It upheld the GO prescribing a uniform dress code, holding it to be a reasonable restriction on the right to freedom of expression and the right to privacy of the petitioners. The court conflated secularism with homogeneity, regarding the dress code as a necessary part of ‘transcending religious or sectional diversities’ [XIV(i)]. It rejected the reasonable accommodation argument as having potential to create non-uniformity of dress and thus breed social-separateness [XIV(ix)]. It declared that in ‘qualified spaces’ like schools, individual rights give way to discipline and even substantive rights become derivative in nature [XIV(iv)].  The HC thus adopted a formal view of equality and held that there is no scope for applying Art. 14 or 15 as the dress code is equally applicable to all the students, regardless of religion, language, gender, etc [XIV(iv)]. .

On 13 October 2022, a two-judge bench of the Supreme Court of India, comprising Justices Hemant Gupta and Sudhanshu Dhulia, delivered a split verdict. Justice Gupta affirmed the GO and held that there was no breach of the rights to religious freedom, equality and non-discrimination, privacy, dignity and liberty, freedom of speech and expression, or education. He held the GO to be a reasonable restriction in the interests of maintaining discipline and unity in schools.

Conversely, Justice Dhulia set aside the HC judgment, quashed the GO and stated that there should be no restriction on the wearing of hijabs anywhere in schools and colleges within Karnataka. He held that the ban violated the rights to religious freedom, equality and non-discrimination, and freedom of speech and expression. He also found that the GO strips the girl child of the right to privacy, dignity and liberty inside the classroom and hinders her access to education by instead prioritising a dress code.

The matter is now pending resolution before a higher bench. In the interim, the GO is again in operation. This means that Muslim girls are being denied access to their education for a second year, remaining an urgent issue for vast numbers of children and young people.

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