On Tuesday, a three-judge bench of the Karnataka High Court upheld the ban on the hijab in educational institutes in the state. The court held that the hijab was not an essential part of Islam and thus could not be protected under the fundamental right to religion.
The state government had the power to regulate clothing inside educational institutions and this does not violate a person’s fundamental right to expression and privacy, the court said.
However, the court clarified that this only applied inside the classroom and that students were free to wear “any apparel of their choice outside the classroom”.
On the basis on these findings and an analysis of the Karnataka Education Act of 1983, the court held that an order of the Karnataka government in February upholding the hijab ban was legal.
What was under challenge?
There were several petitioners before the Karnataka High Court. The first batch of petitions was filed by Muslim students of the Government Pre-University College in Udupi who were denied entry into classrooms in the last week of December for wearing the hijab inside their classrooms. They said that their college, being a government college, was denying them their fundamental right to practise their religion by not allowing them to wear the hijab.
As these students started protesting for their right to wear the hijab, Hindu students from other institutions started wearing saffron scarves and turbans to clalss. They claimed that if Muslim students were allowed to wear religious clothing to educational institutions, so should they.
On February 5, the Karnataka government issued an order stating that students would have to wear the uniform prescribed by their schools and pre-university colleges. Where uniforms were not prescribed, any clothing that disturbs “equality, integrity and public law and order” should not be worn.
This government order was challenged by petitioners, who argued that it was not valid as the law under which it had been was passed did not give college authorities the power to prescribe a uniform.
Issues before the court
Based on the facts and the arguments, the Karnataka High Court framed four questions:
- Is wearing a hijab is an essential religious practice under Islam and hence protected under Article 25 of the Constitution?
- Is prescribing a school uniform legally permissible given freedom of expression and the right to privacy guaranteed by the Constitution?
- Is the government order from February 5 was illegal?
- Should disciplinary action be taken against the principal and teachers who asked students to take off their hijabs?
Hijab is not an essential part of Islam
The court held that the hijab is not an essential practice in Islam and therefore cannot be given constitutional protection.
Under Article 25 of the Constitution, every person has the “right to freely profess, practice, and propagate [their] religion”. However, over the years, the courts have held that only parts of religion that are essential to it which would be constitutionally protected.
The Karnataka High Court noted that essential practices are those that are “fundamental to [the] religion” and exist “from time immemorial”. These are practices that either precede the religion or are founded at the origin of the religion. These practices are binding and “form the cornerstone of [the] religion”. If these practices are not followed, it would result in “the change of [the] religion itself”. Further, it said that these practices must also be in line with individual dignity and constitutional morality.
The essential part of a religion is primarily derived from the doctrines of the religion itself, the court said.
Within this framework, the petitioners argued that wearing a hijab is essential to their faith, while the state government contested that. Both placed their interpretations of Islamic religious texts, the Quran – the central religious text of Islam, and the Hadiths – sayings of Prophet Mohammad, before the court to prove their point.
The state government also argued that wearing the hijab was oppressive for women and thus it went against the idea of individual dignity and constitutional morality. However, the petitioners said that these ideas also meant respecting individual choices, so the hijab should be allowed.
The court, relying on different religious commentators it said were accepted to be authentic, said that wearing a hijab is not obligatory. At best, wearing the hijab could be tied to “culture” but not to religion. Looking at various texts, the court said that the hijab was a veil meant to be a “safe means” for women to leave their homes. Thus, wearing the hijab was not considered essential to Islam.
In addition, the court noted that prescribing clothing items such as the hijab and headgear may “hinder the process of emancipation of woman in general and Muslim woman in particular”.
Freedom of conscience
The court held that the petitioners were also not able to prove that the right to wear a hijab should come under the freedom of conscience. Article 25 of the Constitution also protects a person’s “freedom of conscience” that allows an individual to hold and practise certain beliefs.
Using this guarantee, the petitioners argued that wearing the hijab is an act of conscience and merits constitutional protection. However, the court said that this argument was made perfunctorily. According to the court, the petitioners merely stated that the hijab was an act of their conscience but did not explain why that was so. By itself, this was “not sufficient for treating it as a ground for granting relief”, the court noted.
Further, the court said that the petitioners relied heavily on one Supreme Court case to prove their contention of about the freedom of conscience. In that case, a few school students belonging to the Christian Jehovah’s Witnesses sect had been expelled from school for refusing to sing the national anthem, saying it went against their faith. The court had ruled in favour of the students.
The Karnataka High Court held that this case was decided on the right to practise religion and not on freedom of conscience, as argued by the petitioners. Thus, the grounds of freedom of conscience had not been established.
Disappointment at petitioners’ submissions
The court expressed disappointment with the petitioners, saying that they had not provided enough evidentiary material to prove their case. Thus, the petitioner’s arguments on both religion and conscience had not been made out, as the per the court.
The court noted that “the material before us is extremely meagre and it is surprising that on a matter of this significance, petition averments should be as vague as can be”.
It said that the petitioners also did not submit how long they had been wearing the hijab before joining the institute and also did not offer any explanation about wearing the hijab when they said they would abide by the school’s rules when they had been admitted.
The court also said that the petitioners could not prove the credentials of an expert on the Hadiths they cited to argue that the hijab is an essential part of Islam. The Hadiths are a “record of the traditions or sayings of the Prophet Muhammad, revered and received as a major source of religious law and moral guidance”.
Right to equality, expression and privacy
The court held that uniform policy that banned the hijab was not discriminatory towards students and did not affect their fundamental right to expression and privacy.
The petitioners had argued that regardless of the right to religion and conscience, wearing the hijab inside the class would be protected under freedom of expression guaranteed under Article 19 and the right to privacy and decisional autonomy guaranteed under Article 21. Therefore, while restricting these rights, the government had to see that the least restrictive option had to be exercised.
The petitioners also argued that their demands could be adopted following the test of “reasonable accommodation”, which says that if someone defaults on a rule, such a default should be accommodated if it stems from a constitutional right and the default could be accommodated without the rule losing its character.
This reasonable accommodation could be effected if the students wore hijabs that matched the colour of the school uniform.
However, the court dismissed these arguments. It said that wearing a school dress of choice did not form a core part of expression and privacy to such an extent as to apply these tests. These were not “substantive” rights but “derivative” ones, the court said. Therefore, the protection given to core constitutional rights could not be extended to the students’ grievances of wearing the hijab, which stood at a weaker footing.
Further, it said that a classroom was a “qualified public place”, akin to courts, war rooms and defence camps, where general discipline and decorum would take precedence over individual rights, which could be curtailed. To illustrate how rights would apply differently in these places it said that the rights of a prisoner under trial were “qualitatively and quantitatively” inferior to that of a free citizen and similarly, the rights of a convict were inferior to those of an under-trial.
It said that the students’ demands could not be reasonably accommodated since if allowed, there would be two categories of students: one with hijabs and one without. This will create “social separateness”, which is undesirable. This would lead to non-uniformity and to the school not being a “safe space” anymore.
Lastly, the petitioners also contended that the hijab ban discriminated between students based on their gender since this restriction affected only women students. This, they argued, went against Articles 14 and 15, which guarantee non-discrimination before the law. The court said that the prescribed dress code was neutral and applied regardless of a student’s gender or religion and so was not discriminatory.
Government’s power to prescribe a uniform
The court held that the educational institutes had the power to prescribe a uniform and that the government’s February 5 order was legally valid.
The petitioners had argued that the power to prescribe a uniform was a “police power” and unless the Karnataka Education Act 1983 specifically empowered educational institutes to prescribe a uniform, they could not do so.
The court disagreed. First, it said that the power to prescribe uniforms was a “parental power” where the parents shared some authority with school administrations while sending their children to schools. The court also said that the petitioners had not produced any court rulings to prove that prescribing uniforms came under “police powers”.
Further, the court said that the 1983 act did empower institutes to prescribe a uniform even though that was not mentioned explicitly. The institutes had the power to prescribe a curriculum and this term should be broadly interpreted to mean uniform as well. Apart from this, the court looked at the objectives of the act, which were to foster a secular outlook in students and develop their faculties, and concluded that also gave institutes the power to specify uniforms.
Emphasising the importance of uniforms, the court said that it was a given for institutes to have the power to mandate a dress code. “No reasonable mind can image a school without uniform,” it posited. It cited various documents, such as the ancient Indian scripture Dharmasastra and the English legal text Magna Carta, to bolster its point.
Following these observations, the court also said that since it is legal for institutes to exclude hijab from school uniforms, there should not be any action taken against teachers who had asked students to take off their hijabs.
‘Unseen hands’
The court noted that some “unseen hands” were at work to “engineer social unrest and disharmony” by blowing the hijab debate out of proportion.
The state government had furnished some documents in a sealed cover about an investigation into allegations that there was a conspiracy to highlight the hijab ban.
The court said that it was not “commenting on the ongoing police investigation lest it should be affected”. However, it added that it expected a “speedy & effective investigation into the matter and culprits being brought to book, brooking no delay”.
