Lucknow: On 27 March 2022, when the education minister of Karnataka, referring to a recent high court verdict, said female Muslim students would not be allowed to wear a hijab while appearing for the state board (SSLC) examination a day later, his government’s action went against the judgement itself, his own government’s previous order and settled principles of law.
That is because the high court order was limited to colleges where uniforms are regulated by college councils called college development committees—it was never meant to be widened to all colleges; many colleges require no uniforms, so the court order was irrelevant to them; and the ban was limited to students, not to teachers (one of whom was removed as an invigilator for wearing a hijab)
On 15 March 2022, the Karnataka High Court upheld a government ban on the wearing of headscarves or hijab by female Muslim students in classrooms where uniform was required by school committees and said wearing a hijab was not an essential part of the Islamic faith.
It was on 5 February 2022 that the Karnataka government issued an order banning hijab in classrooms and it believed that “clothes which disturb equality, integrity and public law and order should not be worn”. The state government invoked section 133 (2) of the Karnataka Education Act, 1983, which gives it the power to “give such directions to the officers or authorities under its control as in its opinion are necessary or expedient for carrying out the purposes of the Act”.
We analyse how the Karnataka government has misinterpreted the high court order, which has in any case been widely criticised (here, here, here and here) and challenged in the Supreme Court
High Court Order Was Limited To Certain Colleges
The Karnataka High Court’s judgement banning the hijab and “bhagwa or blue shawl that may have the visible religious overtones” in classrooms was only applicable to those schools that had uniforms prescribed by college development committees.
In the 129-page judgement, the court never indicated or directed that the ban would also be applicable to those colleges where the hijab was already a part of the uniform. It was dealing with a plea moved by female Muslim students of one institution: the Government Pre–University College for Girls, in the coastal town of Udupi.
It was not meant to be applied to colleges that allowed the hijab, whether as part of uniform or did not have a uniform at all.
Yet, 12 days after the order, Karnataka’s minister for primary and secondary education, B C Nagesh, said: “Even if hijab is part of the uniform as prescribed in some schools, students have to take the examination without wearing the headscarf.”
Such a blanket ban on the hijab misinterprets and widens the high court order banning the hijab in colleges with uniforms, lending credence to accusations (here and here) that the government hijab-ban order was not about the hijab but meant to excite religious passions in favour of the ruling Bharatiya Janata Party (BJP) ahead of state assembly elections in 2023.
“This (the misinterpretation) sets a very dangerous trend for the law and order situation in the country,” said Maryam Alavi, a lawyer who practices at various high courts and the Supreme Court of India. “It also puts the courts in direct conflict with the members of the legislature as these members are responsible for overseeing the implementation of the court’s directives.”
“It paints a target on the back of any hijabi woman today,” said Alavi. “It empowers institutions, organisations, management personnel etc to reject access to rights, amenities and services based on her identity alone.”
The high court mainly dealt with the question of whether the hijab violated the dress-code prescribed by college committees and the 5 February government order of that led to the litigation.
Indeed, that government order itself was much narrower than the education minister’s recent blanket ban.
Blanket Hijab Ban Goes Against Govt’s Own Order
The government order of 5 February that led to the high court case, makes it clear that where a dress code or uniform is not prescribed, students would wear attire that accords “equality” and would not “disrupt the public order”.
The government order said that “students should compulsorily adhere to the dress code/uniform” in government schools, “as prescribed” by the government”; in private schools, “as prescribed by the school management”; in pre-university colleges run by the government, “as prescribed by the College Development Committee or College Supervision Committee”; and “wherever no dress code is prescribed, such attire that would accord with ‘equality & integrity’ and would not disrupt the ‘public order’”.
In other words, the State must prove that the hijab “disrupts” public order. Even the Karnataka High Court criticised the state government for using the term “public order”.
“We hasten to add that certain terms used in a Government Order such as ‘public order’, etc., cannot be construed as the ones employed in the Constitution or Statutes,” said the high court. “There is a sea of difference in the textual structuring of legislation and in promulgating a statutory order as the one at hands.”
In the case of government-school students who never received a uniform from the government as they ought to have, the education Minister, talking before the 10th-standard exams, said that “in case of no uniforms students should wear any decent dress”. Except that the definition of “decent dress” is not clear.
On 8 February, the state government filed an affidavit before the Karnataka High Court saying that by taking admission to the institution, the students had submitted themselves to the uniform and the education system. That did not clarify how the State could impose a blanket ban on wearing the hijab in those schools where students did not even have a uniform.
“By taking admission to the institution, they have submitted themselves to the uniform and educational system being imparted,” said the affidavit. “Furthermore, the petitioners have voluntarily given their undertaking that they will abide by the dress code along with the disciple of the institution.”
Government’s Original Reasons For A Ban Unclear
The high court verdict makes it clear that the issue before the High Court was about the hijab superseding the “uniform”, so the government must justify, said experts, under what authority or law it has now widened the limited ban.
Quoting Oscar Wilde, the high court said—referring to the “public order” reference— that “there is scope for improvement even in heaven”. It said the government order “gives a loose impression that there is some nexus between wearing of hijab and the ‘law & order’ situation”.
Such a blanket ban—without any clarification about how it has been widened—also goes against the statutory mandate of the Karnataka Education Act.
For instance, section 39 of the Karnataka Education Act states that where any local authority or the governing council of any private educational institution:
“...denies admission to any citizen on grounds of religion, race, caste, language or any of them or directly or indirectly encourages in the educational institution any propaganda or practice wounding the religious feelings of any class of citizens of India or insulting religion or the religious belief of that class…”
In which case “the competent authority” may, for reasons to be recorded in writing, “withdraw the recognition of the institution or take such other action as is deemed necessary”, after giving to the local authority or governing council an opportunity to make its case.
Although the high court order was confined to students in “qualified spaces”, such as classrooms, there were reports of teachers in hijabs being told to remove head coverings (a teacher resigned rather than obey), and, in one case reported during the 10th-standard examination, suspended from duties.
Seven teachers, too, were suspended for allowing students to wear hijabs during the SLCC examination in Karnataka.
The All India Lawyers Association for Justice, an advocacy group, had issued notice to education minister Nagesh over his statement that the hijab would be banned during the board examinations, They urged him to withdraw his statements, contending that they were based on a misinterpretation of the Karnataka High Court order.
"Your statements run contrary to Government Circular dated 25.03.2022, which states that the uniforms in schools fixed either by the government or by the private schools are to be worn by the students. Your statements also contradict the Judgment of the Hon'ble High Court dated 15.03.2022 in WP 2347/2022. The judgement did not impose a blanket ban on hijab. The judgement upheld the G.O. dated 05.02.2022, which specified that any uniform that had been fixed by the government or a private school in accordance with the law has to be adhered to." said the notice issued by the All India Lawyers Association for Justice.
Similarly, a Bengaluru college, the M R Ambedkar Dental College & Hospital, also misinterpreted the High Court order and ordered a blanket ban on the hijab on campus. The notice issued by college authorities singled out the hijab as religious attire, although the court had banned other religious attire as well.
The hijab-ban fallout went national, with a few schools in other states trying to ban hijabs (here and here), and the principal of a law college in Palghar district, Maharashtra, alleging she had been "harassed" by the management for wearing a hijab after the controversy erupted in Karnataka, although the administration denied her allegation.
‘Misinterpretation Arbitrary, Violates Constitution’
The widening and misinterpretation of the Karnataka High Court order was “arbitrary”, said S F Naqvi, a senior advocate of the Allahabad High Court, even as others questioned the judgement itself.
“Such interpretation amounts to virtually implementing certain things that were not being approved and sanctioned by the judgement,” said Naqvi. “It also amounts to interference in the personal rights of any individuals under Articles 14, 19 and 21 of the Indian Constitution.”
Article 14 of the Constitution says that everyone shall be treated equally before the law: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
Article 14 approaches the concept of equality from two angles: the State cannot deny to any person “equality before the law”; and cannot deny the “equal protections of the laws”.
Article 19 states that “all” citizens shall have the right to freedom of speech and expression. It also states that every citizen has the freedom to move throughout the country, reside, assemble peacefully without arms (protest) and profess or carry on any trade/business.
Article 21 states that “no person shall be deprived of his life or personal liberty except according to procedure established by law”. It includes the right to privacy, affirmed as a “fundamental right” in a 2018 judgement called K S Puttaswamy vs Union of India.
Advocate Tabeer Riyaz from the Jammu and Kashmir High Court said the right to education was a fundamental right, as was the right to practice religion.
“While the courts have often faced dilemmas where they’ve had to balance between two competing fundamental rights, the Karnataka High Court judgement has created a peculiar situation whereby both the fundamental rights [to education and religion] have been undermined and restricted simultaneously.” said Riyaz.
“What the Karnataka High Court has completely failed to or rather refused to acknowledge and address is the foreseeable misuse and misinterpretation of the judgement that is bound to occur in a fragmented society,” said Riyaz, evidence of which was available in the tensions that erupted (here, here and here) in the run up to and after the judgement.
The case was fought not for one religion, but “for the constitutional rights of every Indian, in matters of speech, attire and conscience”, said senior advocate Sanjay Hegde, a Supreme Court lawyer who argued for the female students from Udupi before the Karnataka High Court.
“The High Court was considering the case through the lens of uniforms alone, but the judgement may have far reaching implications in other spheres,” said Hegde.
“It makes a dichotomy between freedom of religion & freedom of conscience, as though the two were mutually exclusive,” said Hedge. “The logic of this judgement may not be restricted to the hijab alone and may extend to several other items of attire. In the garb of uniformity & discipline, a state mandated monoculture might descend upon a diverse country.”
In several judgements over the last decade, the courts have affirmed the idea of India’s multicultural society.
The Supreme Court On The Right To Dress & Choice
In NALSA vs Union of India, 2014, the Supreme Court said that the “right to dress” was a fundamental right, included under Article 21 of the Constitution.
"Everyone has the right to freedom of opinion and expression, regardless of sexual orientation or gender identity, said the Supreme Court. “This includes the expression of identity or personhood through speech, deportment, dress, bodily characteristics, choice of name, or any other means, as well as the freedom to seek, receive and impart information and ideas of all kinds."
The Supreme Court in Navtej Singh Johar vs Union of India, 2018, said that an individual had a “right to choice”.
"The purpose of laying stress on the concepts of individual dignity and choice within the framework of liberty is of paramount importance,” said the Supreme Court. “We may clearly and emphatically state that life and liberty sans dignity and choice is a phenomenon that allows hollowness to enter into the constitutional recognition of identity of a person."
In A S Narayana Deeshitult vs State of Andra Pradesh, 1996, the Supreme Court also held that the protection of Articles 25 (freedom of conscience and free profession, practice and propagation of religion) and 26 (the freedom to manage religious affairs) of the Constitution was not limited to matters of doctrine; it also extended to acts done in furtherance of religion and, "therefore, they contain a guarantee for rituals and observances, ceremonies and modes of worships which are integral parts of the religion".
On 17 March 2002, in an interview with The Wire, senior advocate Dushyant Dave read out the definition of religion contained in the Supreme Court’s 1954 Shirur Mutt judgement:
“It would not be correct to say that religion is nothing else but a doctrine or belief,” said Dave. “A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress.”
Gautam Bhatia, a lawyer and member of Article 14’s editorial board, has argued that the hijab-ban judgement misapplies the “reasonable accommodation test”—which is a principle that promotes equality, enhances the grant of positive rights and prevents discrimination based on disablity, health and “personal belief” —and does not show how allowing the hijab, for those who choose to wear, it is incompatible with the goal of education.
As the hijab-ban case moves to the Supreme Court, what its justices held in Tehseen Poonawalla vs Union of India, 2018, appears relevant. The concept of unity-in-diversity, said the court, must be recognised as “the most potent weapon” in “India’s armoury”, binding different people.
“It has to be remembered that the unique feature of ‘Unity in Diversity’ inculcates in the citizens the virtue of respecting the opinions and choices of others,” said the Supreme Court. “Such respect imbibes the feeling of acceptance of plurality and elevates the idea of tolerance by promoting social cohesion and infusing a sense of fraternity and comity.”
(Areeb Uddin Ahmed is an advocate at Allahabad High Court and former legal journalist.)