Researched by: Sara Varghese and Prafula Grace Busi

Hijab ban case: A very brief refresher

• We did a Big Story on the hijab ban in Karnataka, but here is a quick recap. 
• The case was sparked by a single college’s decision to bar eight Muslim students from entering the classrooms—because their hijab violated the uniform code. 
• The controversy spread across campuses, and a number of students filed petitions with the High Court challenging the ban. 
• The High Court then passed an interim order banning any religious attire in colleges or schools which have a uniform code.
• Many Muslim students being blocked from classes right before their board exams. Others were forced to sit in separate rooms.

The case: The lawyers representing the students argued the following:

• The right to wear a hijab is protected under the right to freedom of religion in Article 25 and is “an essential religious practice.”
• The right to wear a dress is part of the fundamental right to speech and expression under Article 19(1)(a)—and the right to privacy. It can only be regulated if there is an issue of public safety or order.
• Making the girls sit in separate classrooms violates the right to equality.

Yesterday, the High Court rejected all of the arguments.

The ruling: Four key questions

As Gautam Bhatia’s wryly notes, “It is an old adage that the manner in which you choose to frame a question will decide the answer that you will choose to give yourself.” Here’s how the three-judge bench framed the four key questions—and then answered each of them with a resounding ‘no’. Of these three have constitutional significance:

Question #1: Is “wearing hijab/headscarf is a part of ‘essential religious practice’ in Islamic Faith protected under Article 25 of the Constitution?”

Answer: No: “We are of the considered opinion that the wearing of the hijab by Muslim women does not form a part of the essential religious practice in Islamic faith.” The reason offered: “It is not that if the alleged practice of wearing hijab is not adhered to, those not wearing hijab become sinners, Islam loses its glory and it ceases to be a religion.”

The critique: Legal experts have long argued that the courts should not be in the business of deciding what is core to the practice of an individual’s religion. This precedent—known as the essential religious practices test—dates back to a 1954 Supreme Court ruling which held that the term “religion” in Article 25 covers all rituals and practices that are “integral” to the religion. This puts courts squarely in the business of theological interpretation—which is way beyond their role and gives them far too much power to define matters of faith.

And as Faizan Mustafa points out, it sets religious practices in stone:

“It looks too simplistic to say this or that is not a core belief. But then should we privilege one practice over another? The insistence that essential practices must originate at the time of the founding of the religion is also absurd… Religions do evolve over time. To say whatever is not in the Vedas or the Srutis is not an essential Hindu practice may greatly undermine the freedom of religion of Hindus.”

More importantly this: Gautam Bhatia points out that the ERP is “set up to deny and negate individual agency”—which the hijab case makes clear. While women may wear a veil for a variety of reasons—be it out of choice or fear—the judicial reasoning only values religious coercion. This was reflected in the arguments made by the students’ lawyers, as well:

“We therefore see how, before the High Court, the entire range of complex reasons for why one might wear the hijab was reduced to one overarching claim: that it was a religious command that brooked no disobedience… The Court was asked to allow the petition because the Muslim women students effectively had no choice in the matter, for the wearing of a headscarf was a compulsory prescription that flowed from religious authority.”

Question #2: Does the “prescription of school uniform” by educational institutions violate the “petitioners’ Fundamental Rights…guarantees under Articles 19(1)(a) (i.e., freedom of expression), and 21 (i.e., privacy) of the Constitution?”

Answer: No: “We are of the considered opinion that the prescription of the school uniform is only a reasonable restriction constitutionally permissible, which the students cannot object to.” The argument that the girls could wear a scarf that conforms to the dress code was dismissed, as well:

“[F]irstly, such a proposal if accepted, the school uniform ceases to be uniform. There shall be two categories of girl students viz., those who wear the uniform with hijab and those who do it without. That would establish a sense of ‘social-separateness’, which is not desirable. It also offends the feel of uniformity which the dress-code is designed to bring about amongst all the students regardless of their religion & faiths.” 

The critique: Bhatia cites the principle of “reasonable accommodation”—which requires the courts to determine if a person’s constitutional claim from departing from a given rule can be “reasonably accommodated” without violating the purpose of the activity. For example, the Supreme Court recently held that a disabled student was entitled to extra time to write the NEET exams. 

Bhatia argues that the Court is confused about the purpose of the main activity here—which is to provide an education and not to impose a dress code:

“[I]nstead of looking at the uniform as instrumental to achieving the goal of an inclusive and egalitarian right to education (and which would, therefore, require accommodation where accommodation would better serve that goal), it treats the uniform (and its associated values of sameness, homogeneity etc) as the goal itself.”

And parts of the ruling show that it made no effort to determine whether a code-compliant headscarf could be “reasonably accommodated”:

“An extreme argument that the students should be free to choose their attire in the school individually, if countenanced, would only breed indiscipline that may eventually degenerate into chaos in the campus and later, in the society at large.”

Point to note: Oddly, the Court was of the opinion that a nose stud is totally okay because it is “ocularly insignificantly (sic), apparently being as small as can be.”

Question #3: Is the Karnataka government’s order—allowing colleges to ban the hijab on campus on grounds of “public order”—“manifestly arbitrary and therefore violates Articles 14 & 15 of the Constitution”? (The two clauses refer to equality before the law and protection from discrimination on the ground of religion.)

Answer: No: “We are of the considered opinion that the government has power to issue the impugned government order… and no case is made out for its invalidation.” The reason: The use of “public order” was incorrect but there is no ground to claim discrimination:

“By no stretch of imagination, it can be gainfully argued that prescription of dress code offends students’ fundamental right to expression or their autonomy. In matters like this, there is absolutely no scope for complaint of manifest arbitrariness or discrimination inter alia under Articles 14 & 15, when the dress code is equally applicable to all the students, regardless of religion, language, gender or the like. It is nobody’s case that the dress code is sectarian.”

The critique: This was again circular reasoning. We’ve upheld the right to impose a uniform—and since that power holds, there is no reason to look more closely at the spurious argument that wearing a hijab poses a threat to “public order.” 

However, the Constitution requires the state to protect a person’s fundamental rights—unless its exercise poses some kind of serious threat:

“Once the rights to freedom of expression and privacy are triggered, the analysis moves to restrictions, where the test of proportionality applies. 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.”

But by refusing to look at the appeal to ‘public order’, the Court neatly side-stepped the other core rights at stake.

The question that was never asked…

The Court dismissed all arguments pertaining to the right to freedom of speech and expression and the right to privacy. 

Reason #1: This case did not involve these issues—therefore there is no reason to employ the required tests (proportionality, for example) to evaluate the legality of the ban. It also described these rights to free expression and privacy as “essentially derivative”—while the freedom of religion is the “substantive” right in this case.  

Reason #2: Schools are “qualified public spaces”—and “such ‘qualified spaces’ by their very nature repel the assertion of individual rights to the detriment of their general discipline & decorum.” It even compared students to detainees in prison who cannot assert their individual fundamental rights. Other such “spaces” it listed were “courts, war rooms, and defence camps.”

What did get attention: The Court took a serious note of “unseen hands” in the protests: “The way the hijab imbroglio unfolded gives scope for the argument that some ‘unseen hands’ are at work to engineer social unrest and disharmony”—without naming any group.

The basis of appeal: That the Court simply refused to entertain any discussion of the other core fundamental rights has now become the basis of a Supreme Court appeal—filed by Niha Naaz:

“‘Freedom of conscience form a part of the right to privacy,’ her petition stated. Any infringement of her right to privacy should be on the basis of a valid law, for a legitimate state interest and the law must be proportionate… Ms Naaz argued that the High Court judgment had created a ‘dichotomy of freedom of religion and freedom of conscience. This freedom would include the freedom to lawfully express one’s identity in the manner of their liking.’”

The bottomline: Now, we wait… again!

Reading list

Indian Express and The Telegraph have succinct overviews of the ruling. Indian Express also looks at how the sidestepping of the freedom of expression offers a sound basis for appeal. Faizan Mustafa looks at the Court’s narrow interpretation of freedom of religion. Gautam Bhatia focuses on the bizarre primacy given by the Court to uniforms. Also read: his excellent take on the Essential Religious Practices test.