The state of Karnataka saw an upsurge in the early months of 2021 which popularly came to be known as the Hijab controversy. The state government run PU College denied entry to six Muslim girl students for wearing hijab on the ground that it was inconsistent with the uniform policy of college. Following the ban, in some other college of the state some students resorted to wearing saffron shawls as a form of protest against some girl students wearing hijab in the classroom.[1] A committee was formed by the State government to resolve the conflict. The committee decided in line with the PU College stating girls will not be allowed to wear hijab in college. The ban soon spread to other colleges of the state implementing the decision of the committee. Aggrieved by the unlooked-for ban a writ petition was filed in the High Court of Karnataka on the ground that the ban violated the Fundamental Rights of the students. The controversy went on further to the Supreme Court.
After understanding the controversy, mainly two questions arise:
- What exactly is the concept of hijab? Is it an essential custom in Islam?
- Does not wearing hijab violates the Fundamental Rights enshrined in Articles 14,19,25?
IS WEARING OF HIJBAN AN ESSENTIAL PRACTICE?
Meaning of Hijab
Wearing of hijab is a practice unique to the Muslim women. The word can be found in Arabic dictionary which means “covering”. It has a broad meaning in Islam. But it basically means covering of mainly neck and head, in order to maintain modesty and privacy. Hijab is used a form of symbolic identity among Muslim women. It showcases their Muslim identity.
Quran is regarded as the first and fundamental primary source of Islam. Before Quran there was no Islamic society as it exists today. It is believed verses of the holy are made by Almighty God and the Prophet simply uttered these words on behalf of God. It is the guide book for people professing Islam. The Holy book Quran, in its different verses has specified the dress code for Islamic women. The following verses that prescribe dress code are as follows:
- The Al-Quran in Chapter 24, Verses 30-31 says: “And tell the believing women to lower their gaze and be modest, and to display of their adornment only that which is apparent, and to draw their veils over their bosoms, and not to reveal their adornment save to their own husbands or fathers or husband& fathers, or their sons or their husband& sons, or their brothers or their brother& sons or sisters’ sons, or their women, or their slaves, or male attendants who lack vigour, or children who know naught of women’s nakedness. And let them not stamp their feet so as to reveal what they hide of their adornment. And turn unto Allah together, 0 believers, so that ye may succeed.”[2]
- Then, the holy book in chapter 33, verses 58-59 states: “O Prophet! Tell thy wives and daughters, and the believing women, that they should cast their outer garments over their persons (when abroad): this is most convenient, that they should be known (as such) and not molested. And God is often forgiving, most merciful.”[3]
After reading the above two verses of Quran, it can be seen that even the holy book specifies the dress code for Islamic women but the particular word cannot be found anywhere.
The Doctrine of Essential Religious Practice
Religion being an ambiguous concept, the essential religious practice sets forth the essential elements of a religion and hence defining its scope. Article 25 of the Indian Constitution provided the Right to freely profess, practise and propagate religion.[4] There is not strait-jacket formula for essential religious practice. In order to determine whether a particular religious practice is an essential element of a religion or not is to be determined with respect to that particular religion. The Apex court has time and again explained and expanded the scope of religious practice.
In the case of Madras Vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954)[5], the test for essential religious practice was laid down. The Supreme Court ruled that in order to determine what forms an ‘essential’ part of religion, the Court should determine with respect to the doctrines of that particular religion. And for the essentiality test, the court prescribed two conditions that are to be followed:
- The first condition that matters of religion is to be separated from secular practices
- Secondly a religious community must necessarily consider that practice in question as an integral part of the religion.
The court created this contentious doctrine to make sure that only those religious activities that were essential and crucial to the faith were preserved.
In the case of Ratilal P Gandhi Vs State of Bombay (1954)[6], it was stated that the State has power to regulate nonreligious activities connected to religion, but cannot ‘religious practises’. Even while they are connected to religious traditions, the activities that the State intends to regulate must have an “economic, commercial, or political character”. The court recognised that notwithstanding the possibility of interfering with religious practises, the State has the authority to enact legislation promoting social welfare and change.
Thus, it can be said religious practices acts like a mirror of a religion. In order to showcase respect to a particular religion, essential elements or practices of that particular religion needs to respected and followed.
VERDICT OF HIGH COURT OF KARNATAKA
On 15th March 2022, the High Court of Karnataka ruled in favour of the ban on hijab. The three judge bench consisting of Chief Justice Ritu Raj Awasthi and Justices Krishna Dixit and J.M. Khazi discussed four important questions pertaining to the ban.
- Is wearing of Hijab protected under freedom of conscience?
The bench differentiated between freedom of expression and freedom of conscience stating that the former is an “outward expression of belief” and the latter “an internal expression of belief”.[7]
- Is wearing Hijab regarded as an essential practice in Islam?
It was stated that it was not an essential practice in Islam. It is rather a practice based on culture. Hijab was only a method of protecting the privacy of women and had a nexus with social and cultural situations during the time of Quran.[8] It cannot be treated as a sina qua non element of religion.
- Does the ban on wearing Hijab inside the classroom violated right to right to privacy and freedom of expression?
The bench stated that a person’s right to wear what he/she wants is an aspect of freedom and expression. However, this right has certain reasonable restriction which might be curtailed in certain public space to ensure discipline. Thus, the enforcement of a uniform policy by the state government was a reasonable restriction.
- Is the order of the state government valid?
The order banning the wearing of Hijab was upheld by the court since the government had the authority formulate a dress code under Karnataka Education Act, 1983.
The petitioners, however were not satisfied with the judgement and hence challenged the Karnataka high court judgment in the Supreme Court on the ground of violation of Articles 14 and 15 and Article 25. The case was then decided in the Supreme Court by a bench of two judges.
THE SPLIT VERDICT
The case of the Hijab controversy was being heard by the Supreme Court’s Divisional Bench, which included Justices Sudhanshu Dhulia and Hemant Gupta. On September 22, 2022, the Court reserved judgement and gave its judgement on October 13, 2022. It gave a split verdict.
So what is a split verdict? When the judges on the bench are unable to reach a consensus or a unanimous conclusion in a matter, a split verdict is rendered. It is only possible when even number of judges constitute a bench. While Justice Hemant Gupta’s decision upheld the Karnataka High Court’s decision banning the hijab, Justice Sudhanshu Dhulia permitted all appeals and reversed the ruling.
JUDGEMENT IN FAVOUR OF THE BAN:
According to Justice Hemant Gupta, apparent insignia of religious belief cannot be worn to secular institutions maintained with State funding and hence the Karnataka government’s February 5 prohibition decision was upheld. Following the uniform, according to Justice Gupta, is a legitimate constraint on the right to free expression. Those rules help to promote equality. The State had never prohibited the hijab intending to drive children out of public schools and the student’s decision to stay out was a “voluntary act.”
According to Justice Gupta, disobeying the regulations would be the antithesis of discipline, which is one of the qualities pupils develop in schools. Under Article 21, the female students have a right to an education, but they do not have the right to demand that, in a school that is not religious, to wear something else in addition to their uniform.
Additionally, he stated that “secularity” was defined as parity among students in terms of uniformity. The uniform is an equaliser of inequities, as Justice Gupta noted. Others would imitate a certain dress code if students of one faith insisted on it. Allowing members of one religion to wear religious symbols would go against secularism.
The administration and Justice Gupta both agreed that the “ethic of fraternity is best served by full eradication of all disparities,” particularly religious differences, Hijabs will stand out and appear odd in secular classrooms. The fundamental rights should be seen collectively because none of them were absolute.
He said that ‘secularity’ meant ‘uniformity’ and upheld the Karnataka High Court ruling validating the ban on wearing hijab in classrooms.
JUDGEMENT AGAINST THE BAN:
Justice Sudhanshu Dhulia stated in his opposing viewpoint that secularity required accepting “diversity.” He claimed that the issue of whether or not the headscarf was a required religious practise under Islam was crucial to settling the conflict. He asserts that there are no valid grounds for prohibiting the hijab in a school “if the belief is sincere and it damages no one else.” The young female petitioners had argued for their own rights, not those of the society.
Since there will always be multiple religious perspectives on a given religious issue, courts are not the appropriate venues for resolving theological disputes. Hijabs were “ultimately a matter of choice” about whether or not they were worn to school. “Her hijab is her ticket to education,” as the saying goes for girls from strict families. Forced homogeneity was a concept he rejected. Schools and pre-university institutions, according to him, are the “ideal institutions” for youngsters to learn about India’s rich diversity and instil tolerance and accommodating principles.
In addition, he cited the Puttaswamy ruling, including Justice D.Y. Chandrachud’s remarks on the relationship between privacy and human dignity. He said that it is a violation of her fundamental rights, which are outlined in Articles 19(1)(a) and 21 of the Indian Constitution. He cited arguments that the hijab prohibition has caused students to drop out or transfer, which has a negative impact on their education.
Due to the divided ruling, the case will now be brought before the Chief Justice of India for further guidance and will probably be heard by a bigger court. Till then the prohibition on the hijab in Karnataka schools would continue to be in effect till the Supreme Court gives any further instructions.
SUGGESTION AND CONCLUSION
Prohibition on wearing Hijab is a concern with the blatantly high levels of misogynistic and patriarchal thinking that produce a legal fiction that obviously denies women any say in the matter. In these modern times, the focus of the courts should be on the immediate and practical issues rather than digging deeper. The freedom to make decisions for themselves should be granted to women, and the court should take all of this into account. The right to education, the right to equality, and the freedom to practise one’s faith are all guaranteed under the constitution, and none of them is given priority over the others.
The “middle way” that the Indian Constitution advocates is therefore the solution. If those defending the Constitution remain committed to it, all disputes will eventually come to an end in this way. It will take some time until the case’s final decision is made because of the divided jury’s decision. In the end, it is important to keep in mind that the State is accountable for the girl’s education, her future, and the preservation of India’s secular fabric.
Therefore, it is vital for the government, society, religious, and student organisations to work together to find a peaceful, out-of-court resolution to the problem that is in everyone’s best interests and that also lessens reliance on the legal system for social improvements. Every coin has two faces and likewise every issue has two arguments. It means we have to come to the meeting point keeping in the mind the constitutional mandates and also to keep in check that no one’s fundamental right or any kind of right is being infringed.
[1] The Hindu, https://www.thehindu.com/news/cities/Mangalore/students-come-to-class-wearing-saffron-shawls-in-protest-against-girls-wearing-hijab/article38366959.ece (last visited, Feb 20, 2023)
[2] Dr. Mustafa Khattab, The Clear Quran, Book of Signs Foundation, USA (2016).
[3] Afroza Akter Rita Assertion of Wearing Hijab in the Community: an Analysis, ISSN (Online) 2313-4402, 341 (2017)
[4] INDIA CONST, art 25(1)
[5] AIR 282, 1954 SCR 1005
[6] AIR 388, 1954 SCR 1035
[7] SCO Observer, < https://www.scobserver.in/reports/hijab-ban-judgment-summary-karnataka-hc/> (last visited, Feb 21, 2023)
[8] SCO Observer, < https://www.scobserver.in/reports/hijab-ban-judgment-summary-karnataka-hc/> (last visited, Feb 21, 2023)
Author: Banshita Sahoo
Juris Centre 