Karnataka hijab ban case: Supreme Court delivers split verdict

The Supreme Court on Thursday delivered a split verdict on the ban of wearing of hijab in educational institutions in Karnataka – with one judge affirming that the state government is authorised to enforce uniform in schools and the other calling hijab a matter of choice that cannot be stifled by the state.

Justice Hemant Gupta, in his judgment, dismissed all the appeals filed against the Karnataka high court judgment, which held in March that wearing of hijab by Muslim women is not mandatory in Islam and that the Karnataka government was empowered to enforce the uniform mandate.

However, Justice Sudhanshu Dhulia differed from the senior judge on the bench and allowed all the appeals. Reading out the operative part of his judgment, Justice Dhulia said that wearing of hijab is a matter of choice for a Muslim girl and there cannot be any restriction against it.

Quashing the state government’s prohibitory notification, Justice Dhulia added that concerns regarding the education of a girl child weighed the most on his mind and the ban on hijab would certainly come in the way of making her life better.

In view of the dissenting views, the matter has been referred to the Chief Justice of India for constituting an appropriate bench.

The extensive hearing in the case last month witnessed almost two dozen lawyers arguing over a spectrum of issues on behalf of girl students, Islamic bodies, rights groups, lawyers and activists.

While the petitioners challenging the high court order covered in their arguments the right to practice religion, freedom to dress as a matter of expression and identity, right to access education and alleged unreasonableness of the state’s mandate, the Karnataka government maintained throughout the proceedings that their circular to enforce uniform was religion-neutral and aimed only at promoting uniformity and discipline.

Senior advocates Rajeev Dhavan, Kapil Sibal, Dushyant Dave, Salman Khurshid, Huzefa Ahmedi, Colin Gonsalves, Meenakshi Arora, Sanjay Hegde, AM Dar, Devadatt Kamat and Jayna Kothari argued for the batch of girl students, women’s right groups, lawyers, activists and Islamic bodies.

During the proceedings, the petitioners implored the bench to test the February 2022 order of the Karnataka government on the anvil of violation of a spectrum of fundamental rights, especially those relating to religion, culture, privacy and education.

At the same time, most of the petitioners urged the top court to steer clear of the controversy as to whether wearing of hijab formed an essential religious practice or not. Attacking the March 15 high court judgment for ruling that hijab is not an essential religious practice in Islam, the petitioners contended that a court cannot be an arbiter of religion and that interpreting Quran or its verses is outside the expertise of a court of law.

A lot of emphasis was also laid on the 2017 right to privacy judgment to highlight that identity, dignity and self-determination are inalienable rights of an individual and thus, a girl student cannot be compelled to surrender her rights at the school gate. Advocate Shoeb Alam, for one of the petitioners, asked if the state government sought to barter dignity with access to education.

The source of power to enforce a dress code was also questioned by the petitioners, arguing the state had no legit authority to mandate uniform, adding the February circular did not clarify whether the restriction against hijab was in the interest of decency, health or public order. Several lawyers also demanded the case be referred to a nine-judge bench where issues relating to the scope of judicial review in matters of faith are currently pending.

The state government was led by solicitor general (SG) Tushar Mehta. Additional solicitor general KM Nataraj and Karnataka’s advocate general Prabhuling K Navadgi also argued in support of the high court judgment.

The SG began by claiming that the controversy over hijab was manufactured by Popular Front of India (PFI) to trigger a social unrest, and added that enforcement of uniform cannot violate a legal right, much less a fundamental right. According to Mehta, the state government did not touch any religious aspect but made uniform mandatory through a February circular in the interest of unity, equality and discipline. He added that for a practice to be proved as an essential religious practice, a party must establish it is so fundamental and compelling that following a religion is not possible without it.

ASG Nataraj, on his part, underlined that discipline in school is the only issue involved and a discussion on any other aspect is an unnecessary diversion. He contended that enforcement of a dress code is imperative for promoting unity in educational institutions and that the state seeks to restrict all symbols of religious observances in the schools.

Arguing on the dominant effect of the February circular, state’s advocate general Navadgi argued that the foundation of the government order was to mandate uniform, which was completely permissible under the statutory authority, and therefore, any claim of incidental violation of a right must be established fully. He also said that everything mentioned in the Quran cannot become an essential facet of religion.

Reacting on the split verdict, BC Nagesh, Karnataka education minister welcomed the judgement.

“As a democratic government, we welcome whatever judgement we have received from the Supreme Court. But we expected a better judgement, as you know the world over women are demanding not to wear hijab or burka. There is a split judgement, so the verdict given by the Karnataka high court is valid. In that context, we will continue to follow what is currently existing rules (for educational institutions in the state),” said Nagesh.

Congress’s leader of opposition BK Hariprasad, on the other hand, said freedom of practice and preaching must be protected.

“Whatever our rights are in the constitution, freedom of practice and preaching, that should he protected. As far as Karnataka is concerned, it is not about the Hijab but a big conspiracy to stop poor girls from minority communities going to schools and getting educated. After banning the Hijab, around 17000 first generation people (Students) were out of schools. The government has succeeded in its plans that these girls should not get education,” Hariprasad said.