On Thursday, Justice Hemant Gupta of the Supreme Court upheld the ban on the hijab in educational institutes in Karnataka, saying this was a “reasonable restriction” that promoted uniformity and discipline. However, the other judge on the bench, Justice Sudhanshu Dhulia, said that stopping anyone from wearing the veil hurt their dignity, privacy and freedom of conscience as guaranteed by the Constitution.
Since this is a split verdict, the hijab ban in Karnataka will remain in force. The matter will now be placed before Chief Justice UU Lalit, who will likely refer it to a larger bench.
What was the court considering?
The court was deciding whether the Karnataka government can prohibit Muslim girls from wearing the Islamic headscarf in educational institutions. In February, the Karnataka government passed an order asking students to only wear the school uniform prescribed at their schools and pre-university colleges. If a uniform was not prescribed, it asked students not to wear any clothing that would disturb “equality, integrity and public law and order”.
This order was passed after several hijab-wearing girls in the state were denied entry into their educational institutions. It also referred to court judgements to argue that banning the head scarf did not go against a person’s right to practise their religion.
The order had led to widespread protests across the country.
On March 15, the Karnataka High Court upheld the government order. The judgement was then challenged before the Supreme Court.
The petitioners’ main argument was that this ban affected the fundamental rights of Muslim students, guaranteed under Articles 14 (right to equality), 19 (freedom of expression), 21 (right to privacy and dignity) and 25 (right to religion and conscience) of the Constitution.
However, the government argued that this ban was “religion neutral” and a “reasonable restriction” on a person’s fundamental rights, and therefore, legal.
On what grounds was the ban upheld?
Justice Gupta held that the government was within its power under the Karnataka Education Act, 1983, to regulate uniforms in educational institutes. He said that the objective of the order was “to ensure that there is parity amongst the students” and to “promote uniformity and encourage a secular environment”. Rather than discriminating among students, this actually promotes equality as guaranteed under Article 14.
Further, on the argument that the right to wear a hijab was constitutionally protected under the right to practise one’s religion and conscience, Gupta said that the practice might be a religious practice but it cannot be exercised at a “secular school” that was government-funded.
When the petitioners argued that this ban affected students’s freedom of expression and right to privacy, Gupta said that all fundamental rights are subject to “reasonable restrictions”. By banning religious markers in a school, the state did not restrict these rights but has only “regulated the same” inside classroom.
He also held that the uniform did not take away any rights of the students, including the right to education. If the student does not attend class because of the uniform code, “it is a voluntary act of such students” and not the fault of the school.
Gupta emphasised that the uniform would help promote discipline among students and make them “grow without any distinction on the basis of religious symbols”. This would promote fraternity and dignity, goals mentioned in the Preamble to the Constitution.
What did the second judge say?
Dhulia struck down the February order, maintaining that there “shall be no restriction on the wearing of hijab anywhere in schools and colleges in Karnataka”.
The Karnataka High Court had set a very high burden on the petitioners, asking them to prove that the hijab has been used since the beginning of Islam, in order to claim that the veil was fundamental to their religion, he said.
He said that as long as this belief of wearing the hijab was “sincere” and “harms no one else, there can be no justifiable reasons for banning hijab”. Dhulia relied on a previous Supreme Court judgement where the Supreme Court reversed the expulsion of three students of a Christian sect called the Jehovah’s Witnesses after they refused to sing the national anthem, arguing it went against their faith. The court had said that the students held their beliefs sincerely and that expelling them would violate their fundamental rights to freedom of expression and freedom of conscience and religion.
Similarly, the hijab ban violated a student’s fundamental rights, he said. The right to wear a hijab “does not stop at her [a student’s] school gate”, Dhulia noted. The “right to her dignity and her privacy” that she carries outside a school also exists when she is inside a school. He said that while discipline was required in schools, it should not come at the “cost of freedom”.
According to him, the state did not justify how wearing a hijab could lead to a “law and order problem” so as to justify the ban.
He added that the fundamental question the court has to examine is whether the life of a student is made “any better by denying her education merely because she wears a hijab”. In some conservative families, the hijab might be a “ticket to education” and this ban has led to some students staying away from class, he observed.
In contrast to Gupta, Dhulia said that schools and pre-university colleges are important places where students are exposed to the “rich diversity of this nation” and need to imbibe values of “tolerance and accommodation”. Allowing students who wanted to wear the hijab to do so would promote these values.
What happens next?
Since the bench could not reach a consensus, the High Court judgement remains operative and wearing the hijab is still prohibited according to the Karnataka government order. The matter is now before the chief justice of India, who is likely to assign it to a larger bench.
A similar situation arose in August when a bench also comprising Dhulia and Gupta disagreed on whether Ganesh Chaturthi celebrations could be held at the Idgah Maidan in Bengaluru. This was brought to Lalit’s notice, who then constituted a three-judge bench to hear the case.
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