In March of this year, the Karnataka High Court upheld the ban on Muslim girls wearing the hijab in public schools and universities (packaged as a general rule on following uniforms without wearing religious garb).
The girls had protested the hijab ban, which had been imposed first by individual institutions and then by government order, claiming that the hijab was an essential part of their religious practice and should not be prohibited. They contended that restrictions on their religious attire amounted to hostile discrimination and that the right to dress however they pleased was protected by the First Amendment as a matter of conscience.
As a result, because the State is an external authority, it cannot decide whether or not the headscarf is a necessary practice. Senior advocate Devdatt Kamat previously stated that “it must be understood from the perspective of one who believes.”
The Supreme Court, on the other hand, concluded that “wearing of hijab by Muslim women does not form a part of essential religious practice in Islamic faith…” and issued its ruling.
It was claimed that the requirement that students wear school uniforms is merely a reasonable restriction that is constitutionally permissible and to which the students cannot object.
Following that, a number of petitions were filed with the Supreme Court challenging the Karnataka High Court’s decision; however, the highest court in the land determined that it did not need to hear them right away.
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However, on July 13th, a bench led by India’s Chief Justice, NV Ramana, announced, “It will be listed before an appropriate bench sometime next week.”
Let’s go over the history of the Hijab controversy, the Karnataka High Court’s rulings, the petitioners’ arguments this time, and the most pressing issues that the Supreme Court will likely consider in light of the upcoming hearing.
Case Events and Their Results
Six Muslim female students at the Government Pre-University College for Girls in Udupi would be expelled in December 2021 for refusing to wear hijabs to class. According to the group’s statement, “no religious activity will be permitted on campus.”
The girls finally spoke out against the ban on December 31st, after being marked absent for at least three weeks. Their argument was that “despite the fact that it is our constitutional right, they are still not allowing us to attend class due to the hijab.” According to one explanation for the protest, “despite the fact that it is our constitutional right, they are still not allowing us to attend class because we are wearing the hijab.”
On February 5, the Karnataka government mandated student uniforms, and no valid argument was presented to overturn the order. The order also stated that no reasonable grounds for reversal of the decision were presented.
Meanwhile, Hindu right-wing students wore saffron scarves as a symbol of opposition to the hijab, as Muslim students’ acts of defiance against what they saw as an oppressive ban on their religious attire spread across the state. This section does not have any citations. [Insert reference here] As an illustration: This section does not have any citations. [Insert reference here] Here’s an example: [
Muslim students then petitioned the Karnataka High Court, which dismissed their case on March 15 by a three-judge bench. When this happened, the Muslim students had already moved on to the next phase.
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Reasons Given by the Karnataka High Court
The ruling of the High Court of Karnataka on a group of petitions filed by Muslim women students in the state seeking protection of their right to wear hijab in educational institutions in the state can be summarized as follows:
- Wearing a hijab has only been a recommendation, and there is enough intrinsic material in the scripture to support this view.
- The judge wrote, “Petitioners have not averred anything as to how they associate wearing hijab with their conscience, as an overt act.”
- The hijab cannot be considered a fundamental part of Islam in terms of dress.
- Schools are considered “qualified public places” that “repel the assertion of individual rights by their very nature” in order to maintain order and decorum. As one example, “the rights of an individual under trial detention are qualitatively and quantitatively inferior to those of a free citizen.” A person in prison’s rights is subordinate to those of a person in pretrial detention.
- Rights based on the original substance eventually give way to derivative rights.
- The stated goal of the rule is to create an environment free of discriminatory barriers in which students can learn in an environment based on mutual respect and acceptance.
Supreme Court petitions against Karnataka High Court order
According to media reports, a number of petitions challenging the Karnataka High Court’s decision have been filed with the Supreme Court. The All India Muslim Personal Law Board, two Muslim women, an Islamic clerics’ organization, a 66-year-old social activist who also wears a hijab, and two Karnataka residents, both 19 years old, have all filed petitions on this issue.
These petitioners have made broad claims that the Hijab Ban violates Muslim women’s freedom of speech, conscience, liberty, and privacy. They also highlight the injustice of forcing Muslim girls in the Indian state of Karnataka who wear the hijab to choose between education and religious attire.
But first, let’s look more closely at what they’ve said.
According to the petitioners, two Muslim women and the All India Muslim Personal Law Board, they asked the High Court for permission to wear a headscarf “in the same colour of the uniform so that they may remain consistent with their fundamental right of conscience and expression.” The petitioners asked to be allowed to wear a headscarf “the same colour as the uniform” in order to “remain consistent with their fundamental right of conscience and expression.” Furthermore, The Indian Express reported that they disagree:
- Maintaining the ban “violates Muslim girls’ constitutional rights to wear Hijab in addition to their school uniform.”
- It restricts Muslim women’s religious freedom and constitutional rights.
- “The reality is that the petitioners are forced to remove their hijab in order to exercise their right to an education, at the expense of their self-respect and dignity.”
- The High Court’s discussions on “diverse constitutional principles have resulted in conceptual overlapping leading to indirect discrimination.”
- The High Court “placed an undue emphasis on propositions,” resulting in “discrimination, exclusion, and overall deprivation of a class from the mainstream public education system” and “seriously infringes on an individual’s sacrosanct religious belief.”
Kerala Samastha According to reports, Jem-iyyathul Ulama, an organization of Islamic clerics, has filed a Special Leave Petition with the Supreme Court, arguing that the High Court’s decision is based on a misreading of the Quran and Hadiths. According to LiveLaw.com, they argue:
“When a woman is in the company of a male who is not her husband or father, her head and neck must be covered. These Qur’anic verses, as well as Mohammed’s own teachings, make this point abundantly clear.”
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The hijab is not required for Islamic principles to be followed, but “proper covering of the head and neck is an essential component of Islamic tenets.”
The High Court erred in ruling that the hijab is not mandatory because there is no penalty for those who do not wear it, citing “the law that was settled by the Supreme Court in a catena of Judgments” that states that “in order for a religious practice to pass the ‘essentiality test,’ it is not necessary that there be a penalty or penance attached with it.”
In her petition, the 66-year-old activist claims that she was not given the opportunity to be heard by the Karnataka High Court and that her written submissions were not taken into account or referred to in any way. Furthermore, she claims (according to LiveLaw) that
- According to Article 25, it is only subject to “other provisions of this part as well as public order, morality, and health,” and the removal of the right to wear a hijab does not fall into any of these three categories.
- Because Article 25 values faith, it must be evaluated through the lens of a believer’s genuine faith; the essential religious practice test must be applied only when a person’s beliefs appear to be at odds with public safety, morality, or health.
- Teenage girls who choose to dress modestly to school pose no threat to public safety, according to experts.
- Both Article 19 (free expression) and Article 21 (liberty) order place the burden of proof on the state to demonstrate that neither right was violated.
- The state bears the burden of proving that imposing such restrictions was necessary in the public interest and justifiable under Articles 19 and 21.
Two 19-year-old Karnataka women petitioned the Supreme Court of India, claiming that the right to privacy guaranteed by Article 21 of the Indian Constitution includes the wearing of a hijab. Anas Tanwir, a Supreme Court attorney, filed the petition. Furthermore, they argue,
- Individuals have the right to privacy, which safeguards their religious freedom (as pointed out in KS Puttaswamy v Union of India)
- The High Court made a mistake by drawing a line between religious liberty and conscience protection.
- According to the decision in Navtej Singh Johar v. Union of India, everyone has the legal right to freely express their identity. Article 19 (1) guarantees this right (a). This freedom is guaranteed by the Indian Constitution.
Supreme Court cases involve free speech, privacy, and equal protection.
When the Supreme Court decides to hear the hijab case, it will have to address a number of significant legal issues raised in the flood of petitions.
In its ruling, the Karnataka High Court stated that the constitutional guarantee of free exercise of religion under Article 25 only applies to religious rites and practices that are essential to the faith.
This means that the court must consider whether the Karnataka High Court correctly applied the “Essential Religious Practice” test and whether the petitioners are entitled to the protections provided by Article 25 of the Constitution. The court must also decide whether the Karnataka High Court correctly applied the “Essential Religious Practice” test in this case.
The petitioners’ contention that Article 25 is only qualified by considerations of public order, morality, and health may be given some weight. To reaffirm the applicants’ Article 25 protection, the Supreme Court must determine that hijab-wearing by girls in school or college does not harm any of the three categories mentioned above.
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If the Supreme Court agrees with the petitioners that the hijab is an Essential Religious Practice in Islam and that “belief” is relevant under Article 25, the High Court’s decision must be overturned.
According to the Putaswamy decision, the court must also consider whether limiting Muslim women’s ability to wear the hijab violates their right to privacy and freedom of conscience. They’ll make that case in court.
They must also consider whether a woman’s right to liberty and freedom of expression are violated if she is not allowed to dress as she sees fit. Both of these issues were brought up as major complaints against the Karnataka High Court, but neither was addressed in depth.
Aside from the aforementioned issues, it is expected that the country’s highest court will investigate whether the Karnataka government’s order (which effectively bans the hijab) is inherently discriminatory on the basis of religion.
This is due to the fact that Article 15(1) of the Indian Constitution prohibits the government from discriminating against people based on their religion, and Article 14 guarantees that everyone is treated equally under the law.
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According to the article, case law in Article 15 “holds out a promise that no Indian citizen will be heckled or harassed for espousing ideas or holding beliefs that differ from those held by the majority.”
Despite evidence of such harassment, the Karnataka court did not rule that harassment of girls for wearing hijabs was a violation of Article 15. The existence of evidence of such actions is unimportant to this conclusion.
It should be noted that the following was stated in the High Court’s order:
Some “unseen hands” may be at work to sow social unrest and disharmony, and the way the hijab fiasco has played out lends credence to that theory.
On its own, the preceding remark is troubling because it may discourage people from seeking judicial confirmation of their fundamental legal and constitutional rights. That is, without a doubt, a terrifying prospect.
While it is unclear whether the Supreme Court of India will issue a statement on the High Court’s use of such language and casting such broad aspersions in a judicial pronouncement, now would be a good time for them to restate what they said in The State of Uttar Pradesh vs. Mohammad Naim in 1963:
According to the Court, “judicial pronouncements must be judicial in nature and should not ordinarily depart from sobriety, moderation, and reserve.”
The Karnataka High Court used the example of an under-trial detainee’s rights being “qualitatively and quantitatively inferior to those of a free citizen” to justify its position that it is appropriate to prohibit hijab practice in “qualified public spaces,” such as schools. This comparison calls into question whether the court made a fair comparison. That is, they must determine whether the Karnataka High Court’s use of other countries’ experiences to justify prohibiting hijab-wearing in the state is legal.
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This is due to the fact that a school is neither a police station nor a prison, and students are generally immune from any legal proceedings that may take place there. Although it is widely assumed that schools are places of discipline, a student is still a free citizen of the country in every way while enrolled in an educational institution.
The legitimacy of the doctrine is extremely questionable because the High Court’s ruling did not explain where the concept of “qualified public spaces” came from or how it could lead to the creation of new restrictions on fundamental rights. Many people believe that the concept of “qualified public spaces” is unconstitutional.
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