Hijab Ban Appeal #9: Karnataka Gov Recasts Hijab Ban as a Policy for Equality and DisciplineHijab Ban in Karnataka Educational Institutions
On September 21st, Justices Hemant Gupta and Sudhanshu Dhulia finished hearing the Karnataka government, college authorities and teachers argue in defence of Karnataka’s ban on the Hijab in higher educational institutions. Notably, Advocate General for Karnataka, P. Navadgi emphasised that the Government Order in dispute was not a Hijab ban—he characterised it as a rule for uniform to achieve unity and equality in colleges.
Justice Dhulia posed a series of questions to Mr. Navadgi on his Article 19(1)(a) point. Mr. Navadgi made an unusual argument—a law can be declared unconstitutional only if its objective, not a remote effect, violates a fundamental right. He stated that the object of uniform rule is unity, the effect on the freedom to express oneself through dress is unrelated. ‘I will never understand this’, said Justice Dhulia, but promised to think about it.
Background: What is the Hijab Ban?
On February 5th 2022, the Karnataka government issued a Government Order (GO) directing College Development Committees (CDCs) across the state to prescribe a uniform for students. The GO clarified to the CDCs that disallowing Muslim students from wearing the Hijab, a customary Islamic headscarf, would further fraternity and public order. The ban, according to the GO, would not violate any fundamental rights.
Starting from September 2021, pre-university colleges in Udupi stopped women from wearing the Hijab. Many colleges across the State followed suit. The students challenged the GO and the CDCs’ decision at the Karnataka High Court (HC).
In the HC proceedings, lawyers argued that the ban violates the muslim students’ Right to Eqaulity, Education and Religious Freedom. On March 15th, 2022, three Judges of the Karnataka HC upheld the ban, stating that wearing the Hijab was not an essential religious practice in Islam and hence, was not protected under the constitutional right to freedom of religion.
Overnight, a slew of petitions challenging the HC Judgment reached the Supreme Court. The Court has completed six days of hearing final arguments from the petitioners in this case.
Karnataka: Article 25 Protects Only Essential Features of a Religion
Mr. Navadgi built upon Solicitor General Tushar Mehta’s previous argument that Article 25 only protects the features of a religion that are so fundamental that the nature of the religion would change without them. He cited A.S Narayana Deekshitulu v State of Andhra Pradesh (1996) to explain himself. Here, the Supreme Court observed, …’every mundane or human activity was not intended to be protected …under the guise of religion …Articles 25 and 26 must be viewed with pragmatism.’
Mr. Navadgi stated that every aspect of human life is associated with religion in some way. However, providing absolute protection to every act would make governance impossible. Therefore, only the acts truly essential to a religion have Article 25 protection from government interference.
When asked by the Bench to define ‘essential’, Mr. Navadgi turned to Hanif Quareshi (1958) where SC held that cow slaughter on Bakrid is non-essential despite the Quran prescribing sacrifice. He cited paragraphs from this Judgment to argue that a practice is essential only if non-observance would change the nature of one’s faith.
The Hijab, Mr. Navadgi, argued, is not among such practices for Islam. He stated that Muslim women worldwide continue to practice Islam without wearing the Hijab. Yesterday, Mr. Mehta made a similar argument, saying that women is Islamic countries such as Iran are currently protesting against the Hijab. Justice Gupta shared that the wives and daughters of his Muslim friend in Pakistan do not wear the Hijab. He said he has visited Muslim families in UP and Patna and seen women without Hijabs there as well.
Perhaps sensing the Bench’s hesitance to apply the Essential Religious Practices (ERP) test to a Quranic commandment, Mr. Navadgi read multiple opinions from the Triple Talaq Judgment (2017) and from Ismail Faruqui (1994) where this was done. He argued that the trend while dealing with Muslim personal laws is unless you can show that a practice is mandatory and obligatory, you cannot claim Article 25 protection. Left of itself, he said that every part of life will require Art 25 protection. The ERP test was created to avoid this ‘difficult situation’.
Karnataka Gov: Hijab Not Protected by the Right to Dress or Privacy
Mr. Navadgi argued that the Hijab is not protected by Article 19(1)(a) under the right to dress.
He stated that it is not enough for the petitioners to simply assert that this right exists since the Hijab is mentioned in the Quran. The SC denied that Maneka Gandhi has a right to travel abroad under Art 19 since she did not prove the purpose of her travel, he stated.
Even if the Court finds that a right to express oneself through the Hijab exists, Mr. Navadgi argued that the Government sought to address a serious public order problem through the uniform rule. He stated that Muslim students were ‘militantly’ demanding to be let into class in their Hijab.
The petitioners relied on Justice Chandrachud’s Puttaswamy opinion, which said that dignity and liberty are components of the right to privacy. Mr. Navadgi argued that the right to privacy is not absolute, and applies differently in different places. It may be limited in schools. He stated that this might answer Mr. Kapil Sibal’s previous question—Does a student leave their right to dignity and autonomy at the door of the school? Justice Dhulia quickly stated that this does not answer Mr. Sibal’s question.
Karnataka Gov: Article 25 rights may be restricted in the interest of equality.
Mr K.M. Nataraj, arguing for Karnataka, stated that the Article 25 right to religious freedom can be restricted on the basis of other fundamental rights. The uniform rule makes such a restriction to implement the Article 14 right to equality. Mr. Nataraj argued that the uniform rule meant to treat all students as an equal class. The law would violate equal protection if we made different laws for different religious groups. Since the GO is a common law for all students, it furthers equality.
Justice Dhulia pointed out that Article 14 also provides the right to equal ‘protection’ by law for all. Mr. Aditya Sondhi, appearing for the petitioners, previously argued that the ban ‘indirectly’ discriminates against Muslim students. Even though it imposes a common rule on all students, it disproportionately disadvantages one marginalised group. Making a similar point, Justice Dhulia stated that the ‘net effect’ of the uniform rule was that muslim women wearing Hijab were unable to enter schools.
Mr. Nataraj said that the State government respects the Hijab, saffron shawls and all other religious symbols, but believes there is no space for them in schools. ‘Will you allow Hijab-wearing women in school?’, asked Justice Dhulia. Mr. Nataraj replied that the Government is not disallowing any specific symbols. It simply asked schools to prescribe a uniform. Laughing, Dhulia J said that the GO repeats many times that a Hijab ban is permissible, even if the final decision was left up to the schools.
Mr. Nataraj referred to Article 30 which guarantees the right of minorities to establish & administer educational institutions. He argued there are no grounds for restricting Art 30 for public order, health, morality and other fundamental rights in the text of the Constitution. Yet SC read in restrictions on many occasions. Fundamental rights can never be absolute, he stated.
Udupi Teachers Argue That Religious Symbols Create a ‘Wall of Separation’ Between Them and Students
Senior Advocate V. Venkatramani, appearing for a teacher from Udupi, stated that the Hijab acts as a ‘wall of separation’ for teachers, who would prefer direct communication with students without any religious interference. Senior Advocate D.S. Naidu similarly argued that a teacher needs an ‘unconditioned’ mind to teach well.
Justice Dhulia stated that different teachers may have different perspectives. Some other teachers may say that they wish to be culturally sensitive, and teach their students about diverse identities and cultures.
Mr. Venkatramani argued further that the same claim to wear Hijab cannot be made under both Articles 25 and 19. Article 25 covers a wide gamut of religious rights. The petitioners need not ‘latch on’ to the right to free speech and expression as well.
All that remains to be heard in the Hijab Ban challenges is the petitioners’ response to the Karnataka government’s arguments. The Bench has assigned one hour to the petitioners to present their response on September 22nd, 2022.