AN EXAMINATION OF THE KARNATAKA HIGH COURT VERDICT ON THE RIGHT TO WEAR A HIJAB

THE CONTEXT: In December 2021, six students at Udupi Women’s PU College, Karnataka, staged a protest for weeks after college authorities refused to let them sit in classrooms wearing hijabs. After approaching the district commissioner, and education department officials, the girls have petitioned the Karnataka High Court (HC) seeking relief. But the HC ruled against them. This whole saga of events has thrown up very pertinent questions on the right to education, the right to religion, and the courts’ role in adjudicating such cases. In this article, we examine these issues in detail.

WHAT IS THE MEANING OF THE HIJAB?

Hijab, niqab, and burka are different kinds of coverings worn by Muslim women worldwide. Some women wear a headscarf to cover their head and hair, while others wear a burka or niqab, which also covers up their face. Headscarves are seen as a sign of modesty by people who wear them and a symbol of religious faith, but not everyone agrees with them and in some countries, like France and Denmark, there’s a ban on wearing garments that cover the face in public. The word hijab describes the act of covering up generally but is often used to describe the headscarves worn by Muslim women. These scarves come in many styles and colours. The type most commonly worn in the West covers the head and neck but leaves the face clear.

NOTE: The description given above is only for a general understanding of the students and in no manner is an authoritative exposition.

A TIMELINE OF THE ROW OVER WEARING THE HIJAB

28 DECEMBER 2021:

• Girl students started protesting against the refusal of college authorities to allow them to sit in the classrooms wearing hijab.
• The college authorities claimed that it had prescribed a uniform and no other religious attire is permissible to be worn along with the uniform.

3 JANUARY 2022:

• Hindu students of the Government First Grade College in Koppa, Chikmagalur, which also has a uniform and a dress code, staged a sit-in protest sporting saffron scarves.
• Their demand was also to allow them to wear saffron scarves if Muslim girl students were allowed to wear hijabs.

6 JANUARY 2022:

• Similar scenes were witnessed in Pompei college of Mangalore.
• The Karnataka Primary and Secondary Education Minister B.C. Nagesh had said the state was mulling a uniform dress code.

31 JANUARY 2022:

• The issue flared up after Udupi Women’s PU college students approached the HC seeking interim relief to attend classes wearing hijab.
• Meanwhile, the Karnataka government asked all government colleges and schools to maintain the status quo until the government committee came up with a recommendation on the dress code.

2 FEBRUARY 2022:

• Kundapur Government PU college shut its gates to students wearing hijab after Hindu students wore saffron scarves.
• Videos of the girl students pleading with the principal to let them attend classes went viral.

3 FEBRUARY 2022:

• The protests spread to another college in Kundapur. Bhandarkar’s Arts and Science College forced the college management to shut the gates on students sporting hijab as well as saffron scarves.

5 FEBRUARY 2022:

• In exercise of the powers conferred under Section 133(2) of the Karnataka Education Act, 1983, the govt ordered that:
• Students of all government schools to wear the uniform fixed by the state.
• Students of private schools may wear uniforms prescribed by the management committees of the school.
• In colleges that fall under the Karnataka Board of Pre-University Education, the dress code prescribed by the College Development Committee, or the administrative supervisory committee must be followed.
• If the administration does not fix a dress code, clothes that do not threaten equality, unity, and public order must be worn.

14 MARCH 2022:

• The court upheld the legality of the Karnataka Government’s February 5 order prescribing wearing of uniforms in schools and pre-university colleges under provisions of the Karnataka Education Act, 1983.

AT PRESENT:

• The verdict has been appealed to the SC by the original petitioners and others although the SC has not begun hearing it yet.

DECODING THE RIGHT TO WEAR A HIJAB

FUNDAMENTAL RIGHTS:

• Hijab (headscarf) is a Fundamental Right guaranteed under Articles 14 and 25 of the Constitution of India and is an essential practice of Islam.
• Shariah mandates women to wear the headscarf and therefore, the action of the college in banning the headscarf within the premise of the college is repugnant to the protection of religious freedom as provided under Article 25 (1).

UNREASONABLE RESTRICTIONS:

• The Constitution of India guarantees the Freedom of Conscience and the right to profess, practice, and propagate religion while reserving the state’s right to interfere with the religious matter only if it involves an issue relating to public order, morality, and health.
• In this light, it is contended that banning the hijab can only be done by invoking an interest of public order or the morals of the society. However, that is not the case here.

IMPACT ON MENTAL HEALTH AND FUTURE PROSPECTS:

• The manner in which the respondent college has ousted the petitioner not only creates a stigma amongst her batch mates but among the children of the entire college, which in turn will affect the mental health as well as future prospects of the petitioner.

DENIAL OF RIGHT TO EDUCATION:

• The college has curtailed the right to education of the petitioner on the sole ground of religion is smacked with malfides, discriminatory, and politically motivated.
• By doing so the state government has failed in its duty to realise the right to human development by denying the petitioner her education.

ESSENTIAL RELIGIOUS PRACTICE:

• The plea refers to verses from the Holy Quran and states that taking away the practice of wearing the hijab from women who profess the Islamic faith, results in a fundamental change in the character of the Islamic religion.
• For this reason, the practice of wearing the hijab constitutes as an essential and integral part of Islam.
• In the case of Hindu Religious Endowments, Madras v. Sri. Lakshmindra Thirtha Swamiar of Sri. Shirur Mutt (1954 SCR 1005), where the Supreme Court has held that Freedom of Religion in our Constitution is not confined to religious beliefs only; it extends to religious practices also.

CHOICE OF DRESS:

• It is argued that the right of women to have the choice of dress based on religious injunctions is a fundamental right protected under Article 25 (1) when such prescription of dress is an essential part of the religion.

HIJAB AND THE WORLD

• Canada: After a long battle, the Canadian government decided not to pursue a ban on wearing the hijab during immigration ceremonies.
• France: French mayors have banned full-body swimsuits known as “burkinis” from beaches, citing public order concerns.
• United States: Women in hijab represent the United States in government, business, and sports.
• Iran: Women are required to wear hijab, although what constitutes “proper hijab” is widely debated.
• Turkey: Hijab may be part of a police officer’s uniform, although it is not required.

WHAT WAS THE ARGUMENT OF THE STATE OF KARNATAKA?

LEGISLATIVE BACKING:

• As per Section 7 of the Karnataka Education Act, 1983, students of all educational institutions shall behave as one family, without restricting themselves to one class of persons, jointly maintaining and upholding public order.
• Under Section 133 of the Act, the government reserves the right to issue appropriate directions to schools and colleges to ensure the maintenance of public order.

POWER OF SCHOOL DEVELOPMENT COMMITTEE:

• Development Committees of all schools and colleges have been created to make proper use of government grants, improve basic infrastructure and facilities, and maintain the quality of education.
• Schools and colleges are directed to operate as per the decisions of the development committees.

ADVERSE EFFECTS ON EQUALITY:

• The Department of Education, Karnataka, came to know that in some institutions, students are following practices as per their religion, which is adversely affecting equality in such schools and colleges.

JUDICIAL ORDERS:

• The Apex Court in Asha Renjan & Ors v State of Bihar 2017 accepted the balance test when competing rights are involved and has taken the view that individual interest must yield to the larger public interest.
• Thus, conflict over competing rights can be resolved not by negating individual rights but by upholding larger rights to remain, to hold such relationships between institutions and students.
• In Fathima Hussain Sayed v Bharat Education Society & Ors a similar issue pertaining to dress codes arose in Karthik English School, Mumbai. After investigating the issue, the Bombay High Court held that the petitioner’s (school Principal’s) restriction on wearing a headscarf or covering one’s head is not violative of Article 25 of the Constitution.

AN OVERVIEW OF THE HIGH COURT VERDICT

The court upheld the legality of the Karnataka Government’s February 5 order prescribing wearing of uniforms in schools and pre-university colleges under provisions of the Karnataka Education Act, 1983. The court ruled that prescription of school uniforms does not violate either the right to freedom of speech and expression under Article 19(1) (a) or the right to privacy under Article 21 of the Constitution. The restriction against wearing of hijab in educational institutions is only a reasonable restriction constitutionally permissible, which the students cannot object to. Wearing the hijab (headscarf) by Muslim women does not form a part of essential religious practices in the Islamic faith and it is not protected under the right to freedom of religion guaranteed under Article 25 of the Constitution of India. The bench, in its interim order passed on February 10, restrained all students regardless of their religion or faith from wearing saffron shawls (bhagwa), scarfs, hijab, religious flags, or the like in classrooms until further orders on the petitions.

A CRITIQUE OF THE HC JUDGMENT

ESSENTIAL RELIGIOUS PRACTICE: 

• The court finds that the petitioners have failed to prove that wearing the hijab is essential to Islam – i.e., that it is mandatory, non-optional, and that Islam would lose its identity if women did not wear the hijab.
• Neither the court nor external commentators, are particularly well-placed to conduct this analysis.

FRAMING THE WRONG QUESTION:

• It effectively denies to Muslim women the ability to frame their argument as one of religious choice and requires, instead, for them to argue in the language of religious compulsion.

THE TEST OF PROPORTIONALITY:

• Proportionality requires, among other things, that the state adopt the least restrictive method in order to achieve its goals. Thus, where something less than a ban would suffice, a ban is disproportionate.

IGNORING PRECEDENT:

• It is pertinent to note that the petitioners had placed heavy reliance on a Madras High Court judgment (M Ajmal Khan vs Election Commission).
• The Madras High Court had observed, “… thus, seen from the reported material that there is almost unanimity amongst Muslim scholars that purdah is not essential but covering of head by scarf is obligatory”.
• However, quite shockingly, there is absolutely no discussion of the said Madras High Court judgment in the hijab verdict.

REASONABLE ACCOMMODATION:

• Reasonable accommodation requires the court to ask whether, in a setting where a certain default exists, a particular claim for departing from that default, founded in constitutional rights, can be reasonably accommodated by the state (or private party), without the activity in question losing its character.
• In the case of the hijab, the claim for reasonable accommodation is straightforward: that the wearing of the hijab (especially hijab that is the same colour as the uniform and is simply draped, like a shawl, over the head) can be reasonably accommodated alongside the uniform, without damaging or in other ways vitiating the overall public goal of education.

FAILURE TO RECOGNISE INDIRECT DISCRIMINATION:

• Facially neutral criteria of uniform dress code flies in the face of established discrimination law jurisprudence in the country, especially that of indirect discrimination which the Supreme Court of India has recognised.
• The court has failed to recognise that facially neutral criteria are capable of having a disproportionate impact on a particular community or group of individuals.

UNIFORM AS THE GOAL: 

• The court has been weighed down by the role of uniform instead of seeing education as an end goal.
• The court’s crucial error is that it sanctifies the uniform instead of sanctifying education.
• Instead of looking at the uniform as instrumental to achieving the goal of an inclusive and egalitarian right, it treats the uniform (and its associated values of sameness, homogeneity, etc) as the goal itself.

THE HIJAB AND WOMEN’S AGENCY

• To view the hijab as a contest between men and women, oppression and freedom, patriarchy and liberation is to reduce hijab-wearing women to their immediate identities of victims of patriarchy, denying them their agency and, therefore, viewing the world through a narrow dichotomy.
• We must acknowledge that feminine agency negotiates a matrix of power — whether it is caste, class, or community. The recent attack on the hijab cannot be seen in isolation but as part of the larger global politics starting from 9/11 when symbolic representations of Muslim identity in public were complicated by certain countries in Europe legislating to ban the hijab in state-run institutions, including schools.
• The representation of Islamic norms as incompatible with modern secularism led not just to a ban of the hijab but also the burkini. But symbols of the Christian religion continued to be worn publicly without being challenged. Similarly, In India, where the hijab is being attacked for disrupting the ‘uniform style of clothes’, no other religious symbols displayed on the body are being questioned.

THE WAY FORWARD

ROLE OF THE SC: The SC should hear the matter at the earliest and provide for an authoritative pronouncement.

ROLE OF THE GOVTS: The role of the union and state governments is very important here as they are the agencies responsible for implementing governance as per the Constitution. They should not support any act against the Constitution and particularly that which serves the agenda of fundamentalist forces.

A SENSITIVE APPROACH: The Karnataka government and college administration should have handled the issue in a more conciliatory and sensitive way so as to ensure the continuation of the education of these girls rather than confronting them in this way.

ROLE OF SECULAR AND DEMOCRATIC MOVEMENT: The secular and democratic movements and political parties are seen to be stuck on symbolic issues. Instead, they need to have a broader development agenda for marginalised minorities.

RECONCILIATION OF RELIGION AND EDUCATION: The hijab controversy had become a site of contest between religion and education, community, and the system. “Muslim girls are increasingly opting for higher education. But with these developments, there may be a setback with girls withdrawing from modern secular education. This must be addressed.

THE CONCLUSION: In its 1994 judgment in the S.R Bommai case 1994, the Supreme Court observed that “religious freedom is the hallmark of pluralism and inclusiveness. It is meant to advance social harmony and diversity”. This must be the spirit in which the whole issue should be understood, debated, and logically concluded.

Questions:

1. Critically examine the judgment of the Karnataka High Court with respect to the ban on hijab in educational institutions.
2. Facially neutral criteria of uniform dress code flies in the face of established discrimination law jurisprudence in the country, especially that of indirect discrimination which the Supreme Court of India has recognised. Comment

ADD TO YOUR KNOWLEDGE

THE FUNCTION OF THE COLLEGE DEVELOPMENT COMMITTEE

1. Prepare an overall comprehensive development plan for the college regarding academic, administrative, and infrastructural growth, and enable the college to foster excellence in curricular, co-curricular, and extra-curricular activities.
2. Decide about the overall teaching programmes or annual calendar of the college.
3. Recommend to the management about introducing new academic courses and the creation of additional teaching and administrative posts.
4. Take a review of the self-financing courses in the college, if any, and make recommendations for their improvement.
5. Make specific recommendations to the management to encourage and strengthen research culture, consultancy, and extension activities in the college.
6. Make specific recommendations to the management to foster academic collaborations to strengthen teaching and research.
7. Make specific recommendations to the management to encourage the use of information and communication technology in the teaching and learning process.
8. Make specific recommendations regarding the improvement in teaching and suitable training programmes for the employees of the college.
9. Prepare the annual financial estimates (budget) and financial statements of the college or institution and recommend the same to the management for approval.
10. Formulate proposals of new expenditure not provided for in the annual financial estimates (budget).
11. Make recommendations regarding the students’ and employees’ welfare activities in the college or institution.
12. Discuss the reports of the internal quality assurance committee and make suitable recommendations.
13. Frame suitable admissions procedures for different programmes by following the statutory norms.
14. Plan major annual events in the college, such as annual day, sports events, cultural events, etc.
15. Recommend to the administration appropriate steps to be taken regarding the discipline, safety, and security issues of the college or institution.
16. Consider and make appropriate recommendations on inspection reports, local inquiry reports, audit reports, reports of national assessment and accreditation council, etc.
17. Recommend the distribution of different prizes, medals, and awards to the students.
18. Prepare the annual report on the work done by the committee for the year ending on the 30th of June and submit the same to the management of such college and the university.

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