Hijab Ban in Karnataka Schools: Supreme Court Split on Religious Freedom and Education (13 October 2022)

Case Background

The controversy began when the Karnataka government issued an order on 5th February 2022, mandating a uniform dress code for all schools and colleges. The order directed government schools to adhere to the official uniform, while private schools were to enforce a uniform as decided by their board of management. The order also stated that in colleges under the pre-university education department, students should wear uniforms mandated by the College Development Committee or the board of management. In the absence of a mandated uniform, students were to wear clothes that were “in the interests of unity, equality, and public order.”

This order effectively banned the wearing of hijabs in educational institutions that had a prescribed uniform. This order was challenged by several Muslim students, including Aishat Shifa and Tehriana Begum, who were second-year students at a Government Pre-University College in Kundapura. These students had been wearing hijabs to school for over a year without any issue, but were suddenly stopped at the gate on 3rd February 2022. They were told that they would have to remove their hijabs before entering the college.

The students, along with others, filed a writ petition before the Karnataka High Court, which upheld the ban. This led to the matter being taken to the Supreme Court.

Timeline:

Legal Framework

The legal framework for this case primarily involves the Karnataka Education Act, 1983, and the Constitution of India.

The Karnataka Education Act, 1983: This Act aims to foster the harmonious development of students and cultivate a secular outlook through education.
✓ Section 7(2) empowers the government to prescribe curricula that promote harmony and brotherhood, and to develop scientific temper.
✓ Section 39(1)(b) prohibits denial of admission based on religion.
✓ Section 39(1)(c) prohibits encouragement of propaganda or practices that wound religious feelings.
✓ Section 133(2) empowers the government to give directions to educational institutions.
✓ Section 145 empowers the government to make rules to carry out the purposes of the Act.

The Karnataka Educational Institutions (Classification, Regulation and Prescription of Curricula etc.) Rules, 1995:
✓ Rule 11 allows recognized educational institutions to specify their own uniform.

Constitution of India:
✓ Article 14 guarantees equality before the law.
✓ Article 19(1)(a) protects the right to freedom of speech and expression.
✓ Article 21 protects the right to life and personal liberty.
✓ Article 25(1) guarantees the freedom of conscience and the right to freely profess, practice, and propagate religion.

Arguments

The arguments presented in this case revolved around the interpretation of fundamental rights and the extent to which the state can regulate religious practices in educational institutions.

Appellants’ Arguments:

• Right to Freedom of Expression: The appellants argued that wearing a hijab is a form of self-expression, protected under Article 19(1)(a) of the Constitution. They contended that it is an expression of their identity, culture, and values.
• Right to Freedom of Religion: They argued that wearing a hijab is a religious practice protected under Article 25(1) of the Constitution. Some appellants contended that it was an essential religious practice.
• Right to Privacy and Dignity: The appellants asserted that the ban on hijab violates their right to privacy and dignity under Article 21 of the Constitution. They argued that it is a personal choice and that the state cannot interfere with their personal appearance.
• Discrimination: The appellants argued that the government order was discriminatory as it targeted a specific community. They contended that the order, though seemingly neutral, disproportionately affected Muslim women.
• Reasonable Accommodation: They argued that the state is obligated to provide reasonable accommodation for their religious practices, especially in educational institutions.
• No Public Order Issue: They contended that wearing a hijab does not cause any public disorder or disturbance and that it is a peaceful expression of their religious beliefs.

Respondents’ Arguments:

• Uniformity and Discipline: The respondents argued that the government order was issued to promote uniformity, discipline, and a secular environment in schools. They contended that the uniform is a reasonable restriction on individual rights.
• Secularism: They asserted that the state is secular and that educational institutions should not allow religious symbols that could disrupt the secular environment.
• Essential Religious Practice: The respondents argued that wearing a hijab is not an essential religious practice in Islam. They contended that it is merely a permissible practice and not mandatory.
• State Authority: They argued that the state has the power to regulate educational institutions and to ensure that students follow a prescribed uniform.
• Public Order: The respondents argued that the state has a responsibility to maintain public order and that allowing religious attire in schools could lead to division and disharmony.

Submissions Table

Issues Framed by the Supreme Court

The Supreme Court framed the following issues for consideration:

1. Whether the appeals should be heard along with Kantaru Rajeevaru (Right to Religion, In Re -9J) and/or should the present appeals be referred to the Constitution Bench in terms of Article 145(3) of the Constitution?
2. Whether the State Government could delegate its decision to implement the wearing of uniform by the College Development Committee or the Board of Management and whether the Government Order insofar as it empowers a College Development Committee to decide on the restriction/prohibition or otherwise on headscarves is ex facie violative of Section 143 of the Act?
3. What is the ambit and scope of the right to freedom of ‘conscience’ and ‘religion’ under Article 25?
4. What is the ambit and scope of essential religious practices under Article 25 of the Constitution?
5. Whether fundamental rights of freedom of expression under Article 19(1)(a) and right of privacy under Article 21 mutually exclusive or are they complementary to each other; and whether the Government Order does not meet the injunction of reasonableness for the purposes of Article 21 and Article 14?
6. Whether the Government Order impinges upon the Constitutional promise of fraternity and dignity under the Preamble as well as fundamental duties enumerated under Article 51-A sub-clauses (e) and (f)?
7. Whether, if the wearing of hijab is considered as an essential religious practice, the student can seek the right to wear a headscarf to a secular school as a matter of right?
8. Whether a student-citizen in the constitutional scheme is expected to surrender her fundamental rights under Articles 19, 21 and 25 as a pre-condition for accessing education in a State institution?
9. Whether in the constitutional scheme, the State is obligated to ensure ‘reasonable accommodation’ to its citizens?
10. Whether the Government Order is contrary to the legitimate State interest of promoting literacy and education as mandated under Articles 21, 21A, 39(f), 41, 46 and 51A of the Constitution?
11. Whether the Government Order neither achieves any equitable access to education, nor serves the ethic of secularism, nor is true to the objective of the Karnataka Education Act?

Treatment of the Issue by the Court

Authorities

The Supreme Court considered various authorities, including:

Divergent Opinions

The Supreme Court bench, comprising Justice Hemant Gupta and Justice Sudhanshu Dhulia, delivered a split verdict, highlighting the differing interpretations of the issues.

Justice Hemant Gupta’s Opinion:

Justice Hemant Gupta upheld the Karnataka High Court’s decision, stating that the government order was valid and did not violate the fundamental rights of the students. His key points were:

• Secularism and Uniformity: He emphasized the importance of secularism in educational institutions and the need for a uniform dress code to promote equality and discipline.
• Essential Religious Practice: He held that wearing a hijab is not an essential religious practice in Islam and that the state can regulate such practices in secular institutions.
• State Authority: He affirmed the state’s power to regulate educational institutions and to ensure that students follow a prescribed uniform.
• Reasonable Restrictions: He held that the restrictions on wearing a hijab were reasonable and necessary to maintain public order and a secular environment.

Justice Sudhanshu Dhulia’s Opinion:

Justice Sudhanshu Dhulia disagreed with Justice Gupta and the Karnataka High Court, emphasizing the importance of individual religious freedom and expression. His key points were:

• Freedom of Religion: He emphasized that wearing a hijab is a matter of personal choice and religious freedom, protected under Article 25(1) of the Constitution.
• Freedom of Expression: He argued that wearing a hijab is a form of self-expression, protected under Article 19(1)(a) of the Constitution.
• Right to Privacy and Dignity: He asserted that the ban on hijab violates the students’ right to privacy and dignity under Article 21 of the Constitution.
• Discrimination: He argued that the government order was discriminatory as it targeted a specific community.
• Reasonable Accommodation: He argued that the state is obligated to provide reasonable accommodation for religious practices, especially in educational institutions.

Conclusion

The split verdict by the Supreme Court means that the matter remains unresolved. The case highlights the complex interplay between religious freedom, individual expression, and state authority in a diverse society like India. The divergent opinions underscore the differing interpretations of fundamental rights and the extent to which the state can regulate religious practices in educational institutions.

The case has significant implications for the future of religious freedom and education in India. It raises questions about the balance between secularism and religious diversity, and the extent to which the state can impose a uniform standard on all citizens. The case also highlights the need for a more inclusive and accommodative approach to education, one that respects the diversity of religious beliefs and practices.

As a result of the split verdict, the matter may be referred to a larger bench for a final decision.