A slew of statements made through the judgment betrays the bench’s predilections on the subject of wearing hijab.
ON Tuesday, a three judge bench of the Karnataka High Court, comprising Chief Justice Ritu Raj Awasthi and Justices Krishna S. Dixit and J.M. Khazi pronounced a 129-page judgment, dismissing the writ petitions filed against the decision of certain government colleges and pre-universities in Karnataka to set a uniform policy for students that bars female students from wearing hijab, that is, a head-scarf, inside the classroom, and an order issued by the Karnataka government last month that affirms the policy. These petitions had been referred to the Chief Justice, for assessment by a larger bench, by a single judge bench of Justice Dixit on February 9.
The bench had heard arguments from the numerous petitioners and respondents in the various petitions in daily hearings conducted over 11 days last month, before reserving its judgment on February 25.
The high court judgment begins by summarising the contentions advanced by both sides.
The petitioners had, firstly, argued that wearing of the hijab is an essential religious practice in Islam, and the respondents’ insistence on barring it within the classroom runs afoul of Muslim female students’ rights under Article 25 of the Constitution.
By perusing various extracts from Ali’s commentary, the court concludes that wearing hijab has been only recommendatory within Islam. This is because the Quran does not mandate wearing of hijab or headgear for Muslim women, and there penalty or penance prescribed for not wearing hijab.
Next, they had argued that one’s personal appearance or choice of dressing is a matter of personal choice protected within the freedom of expression available under Article 19(1)(a) of the Constitution, and under the privacy jurisprudence within Article 21 of the Constitution.
The petitioners had also alleged violation of the ‘doctrine of proportionality’, and that the impugned government order suffers from manifest arbitrariness and is a result of gross non-application of mind.
They had contended that the Karnataka Education Act, 1983 or the Rules promulgated thereunder do not authorize the prescription of any dress code or uniform at all. Similarly, the College Betterment (Development) Committee constituted under a Government Circular in 2014, being an extra-legal authority, is not authorized to prescribe a dress code/uniform for students. Since public order is cited as a consideration for the dress code/uniform in the impugned government order, they argued that if the wearing of hijab disrupts the public order, the State should take action against those responsible for such disruption, instead of banning the wearing of hijab.
They had also argued that the hijab proscription offends women’s autonomy, and is violative of Article 14 of the Constitution, by virtue of creating gender–based discrimination, which Article 15 of the Constitution does not permit.
Finally, they had argued that the dress code violates the right to education of students with hijab, whose entry to the institutions is prohibited, and that is in derogation of international conventions that provide for protective discrimination of women’s rights, as well as the Brochure of the Education Department, which prohibits prescribing any kind of uniform. Some of the petitions had demanded that school teachers forcing students to remove hijab before entering institutions should have disciplinary action initiated against them.
The respondents had argued that the rights under Article 25 are not absolute, and that the wearing of hijab or head scarf is not a part of the ‘essential religious practice’ of Islamic faith, since the Quran does not contain any such injunctions.
They had argued that the power to prescribe school uniform is inherent in the concept of school education itself, and the impugned government order only authorizes the prescription of dress code by the institutions on their own and does not prescribe any by itself.
They had contended that the simultaneous claims to wear hijab inside the classroom under Articles 19(1)(a) and 25 are not only mutually exclusive, but denuding of each other. Additionally, the freedom of conscience, the right to practice religion, the right to expression and the right to privacy are all subject to reasonable restriction or regulation by law.
The reason for the diminished status of the petitioners’ rights, according to the court, is that in “qualified public places” (a term that the court uses multiple times in the judgment without defining it) such as schools, the freedom of individuals is, “as of necessity” curtailed for reasons of discipline, decorum, and the function and purpose of schools.
Finally, they had averred that wearing hijab offends tenets of human dignity, robs away the individual choice of Muslim women, and militates against constitutional morality.
“Whether wearing hijab/head-scarf is a part of ‘essential religious practice’ in Islamic Faith protected under Article 25 of the Constitution?
Whether prescription of school uniform is not legally permissible, as being violative of petitioners Fundamental Rights inter alia guaranteed under Articles, 19(1)(a), (i.e., freedom of expression) and 21, (i.e., privacy) of the Constitution?
Whether the Government Order dated 05.02.2022 apart from being incompetent is issued without application of mind and further is manifestly arbitrary and therefore, violates Articles 14 & 15 of the Constitution?
Whether any case is made out in W.P.No.2146/2022 for issuance of a direction for initiating disciplinary enquiry against respondent Nos.6 to 14 (principal, vice-principal and lecturers of government colleges) and for issuance of a Writ of Quo Warranto against respondent Nos.15 & 16 (Members of Karnataka Legislative Assembly and unauthorized chairmen of college development committees)?”
Right to religion and ‘essential religious practice test’
The High Court first affirms that secularism is part of the basic structure of the constitution, and that India follows a model of positive secularism.
It notes that the text of Article 25 indicates that the freedom guaranteed by it in terms of sanctity is placed on comparatively a lower pedestal qua other Fundamental Rights conferred in Part III of the Constitution.
It then cites the essential religious practice test laid out by the Supreme Court in its Sabarimala judgment of 2018:
“A religious practice in order to be called an ‘essential religious practice’ should have the following indicia: (i) Not every activity associated with the religion is essential to such religion. Practice should be fundamental to religion and it should be from the time immemorial. (ii) Foundation of the practice must precede the religion itself or should be co-founded at the origin of the religion. (iii) Such practice must form the cornerstone of religion itself. If that practice is not observed or followed, it would result in the change of religion itself and, (iv) Such practice must be binding nature of the religion itself and it must be compelling.”
To assess whether the donning of hijab qualifies as an essential religious practice in Islam, the high court relies upon the ‘The Holy Quran: Text, Translation and Commentary’ by Indian-British barrister and legal scholar Abdullah Yusuf Ali (published by Goodword Books; 2019 reprint), due to “there being a broad unanimity at the Bar as to its authenticity and reliability”, and the Supreme Court’s reliance on it in a catena of cases as an authoritative work.
The court begins its analysis by pointing out that the Quran expressly warns against any compulsion in religion. By perusing various extracts from Ali’s commentary, it concludes that wearing hijab has been only recommendatory within Islam. This is because the Quran does not mandate wearing of hijab or headgear for Muslim women, and there penalty or penance prescribed for not wearing hijab. The court concedes that at the most, the practice of wearing hijab may have something to do with culture, but not with religion. It notes that the practice of wearing hijab was connected to the socio-cultural conditions then prevalent in the region where a particular source of Islamic law was written.
With regard to the petitioners’ reliance on another Islamic law commentary that refers to a hadith in support of their argument, the court rules that “what is made recommendatory by the Holy Quran cannot be metamorphosed into mandatory dicta by a hadith which is treated as supplementary to the scripture.”
The court then goes on to dismiss four high court judgments referred by both sides in support of their respective contentions for being irrelevant and having incomparable fact situations, apart from not relying on Ali’s commentary.
The court accepts the petitioners’ argument that the contents of the government order give the impression that it has been hastily issued. However, it then cites ‘executive wisdom’ and the doctrine of separation of powers to determine that this is “too feeble a ground for faltering a policy decision”.
Next, the court deals with the petitioners’ argument relating to freedom of conscience, stemming from the Supreme Court’s landmark Bijoe Emmanuel judgment of 1986.
The court laments that “no material was placed before us for evaluation and determination of pleaded conscience of the petitioners. They have not averred anything as to how they associate wearing hijab with their conscience, as an overt act. There is no evidence that the petitioners chose to wear their headscarf as a means of conveying any thought or belief on their part or as a means of symbolic expression.”
It analyzes Bijoe Emmanuel and holds, in a contrived manner, that it dealt more with the right to religion than the freedom of conscience, even though there is “some reference” to the conscience (this is certainly a questionable interpretation of the judgment); therefore, the judgment has no relevance to the instant matter.
The court concludes its discussion on this point by chiding the petitioners for providing vague and “extremely meagre” materials to the court. It concludes that wearing hijab is not an inviolable religious practice in Islam, much less a part of an ‘essential religious practice’.
Prescription of school uniform and reasonable restrictions on fundamental rights
The court affirms the state government’s power to prescribe dress code/uniform for students by first emphasizing the centrality of uniform to schools. It notes that the Supreme Court has construed the term ‘education’ to include ‘curricula’. It then holds that the word ‘curricula’ in Section 7(2) of the Karnataka Education Act must be broadly construed to include the power to prescribe uniform. Since Section 133(2) of the Act vests power in the government to give direction to any educational institution for carrying out the purposes of the Act or to give effect to any of the provisions of the Act or its Rules, it, read with section 7(2), empowers the government to prescribe or caused to be prescribed school uniform.
The court then states that “the prescription of dress code for the students that too within the four walls of the class room as distinguished from rest of the school premises does not offend constitutionally protected category of rights, when they are ‘religion-neutral’ and ‘universally applicable to all the students.’”
Next, in a rather laboured manner, the court connects a dress code in schools with Constitutional secularism, and describes the petitioners’ argument, that the goal of education is to promote plurality and heterogeneity over uniformity and homogeneity, as “thoroughly misconceived”. There is also the following bizarre claim – “… it is impossible to instil the scientific temperament which our Constitution prescribes as a fundamental duty vide Article 51A(h) into the young minds so long as any propositions such as wearing of hijab or bhagwa are regarded as religiously sacrosanct and therefore, not open to question.”
Assessing the petitioners’ contentions about restriction on their expression and privacy, and the principles of reasonable accommodation and proportionality, the court first qualifies the rights that the petitioners allege the violation of as “derivative rights”, which are to be distinguished from “substantive rights”. It claims that the petitions do not involve the right to freedom of speech and expression or the right to privacy to such an extent as to warrant the employment of the ‘least restrictive test’ and the ‘proportionality test’ developed in our constitutional jurisprudence for the evaluation of the restrictions placed on them. According to the court, “[the petitioners’] grievances do not go to the core of substantive rights as such but lie in the penumbra thereof, and therefore not covered by the protections extended to substantive rights.”
The reason for the diminished status of their rights, according to the court, is that in “qualified public places” (a term that the court uses multiple times in the judgment without defining it) such as schools, the freedom of individuals is, “as of necessity” curtailed for reasons of discipline, decorum, and the function and purpose of schools. It makes the logical leap that if students are allowed to choose their attire in school, it “would only breed indiscipline that may eventually degenerate into chaos in the campus and later, in the society at large”.
The court also dismisses the petitioners’ contention that ‘a classroom should be a place for recognition and reflection of diversity of society, a mirror image of the society (socially & ethically)’ as “hollow rhetoric”, and ‘unity in diversity’ as an “oft quoted platitude”. Ironically, earlier in the judgment during its reflection on secularism in India, the court discusses the diversity of Indian society, describing our nation as a “sanctuary for several religions, faiths & cultures that have prosperously co-existed, regardless of the ebb & flow of political regimes.”
In response to the petitioners’ reasonable accommodation argument of allowing female Muslim students to wear a hijab with a colour that matches that of the uniform, inside the classroom, the court holds that if such a proposal is accepted, the school uniform would cease to be uniform, and create two categories of girl students: those who wear the uniform with hijab, and those who do it without. That would, according to the court, establish a sense of ‘social-separateness’, which is not desirable, and defeat the purpose of the uniform. The aim of the regulation, the court explains, is to create a ‘safe space’ without divisiveness of any kind, and the ideal of egalitarianism “readily apparent to all students”.
It also dismisses a South African judgment in which a student was allowed to wear a nose stud in spite of the dress code, by calling a nose stud “ocularly insignificant” and therefore unlikely to affect the uniformity which the dress code intends to bring in the classroom.
On these grounds, the court holds the prescription of school uniform as a reasonable restriction which is constitutionally permissible.
Government’s power to issue the impugned government order
The court affirms the government’s power to issue the impugned order by reiterating that Section 133(2) of the Karnataka Education Act empowers the government to issue any directions to give effect to the purposes of the Act or to any provision of the Act or to any Rule made thereunder. Since Rule 11 of the Karnataka Educational Institutions (Classification, Regulation and Prescription of Curricula etc.,) Rules, 1995 provides for the prescription of school uniform, the power under section 133(2) includes the authority to prescribe dress code for schools.
Regarding the inclusion of the ground of ‘public order’ in the order, the court rules that it is not the same as the way the term is used in Article 19 of the Constitution. The court distinguishes between the textual structuring of legislation and executive orders, since the latter may lack due diligence and seriousness in the terminology used. It advises that “words used in Government Orders have to be construed in the generality of their text and with common sense and with a measure of grace to their linguistic pitfalls”, and admits that the order could have been better drafted.
The court accepts the petitioners’ argument that the contents of the government order give the impression that it has been hastily issued, especially in light of the fact that a contemplated High Powered Committee was yet to look into the issue of the desirability of prescription and modules of dress codes in educational institutions. However, it then cites ‘executive wisdom’ and the doctrine of separation of powers to determine that this is “too feeble a ground for faltering a policy decision”.
The court dismisses the demand for disciplinary action against teachers, since their alleged acts were in furtherance of seeking adherence to school discipline and the prescribed dress code. The demand for issuance of writ of quo warranto is also dismissed since the two respondents in question don’t hold a public post, which is a pre-condition for the issuance of the writ.
The court does not accept the petitioners’ education department brochure argument, in absence of information about its authorship, and in light of the overriding government order. It also rejects the petitioners’ citation of research by the American think-tank Pew Research Center that found that most Hindu, Muslim and Sikh women cover their heads outside the home, by doubting the authenticity of the research, as well as questioning the absence of furnishing of credentials of the researchers and the representative character of the statistics mentioned in the research.
Regarding college development committees, the court opines that “these Committees have been functioning since about eight years or so with no complaints whatsoever … nor is any material placed on record that warrants consideration of the question of their validity.” It holds that the induction of local legislators in these Committees per se is not a ground for invalidating the committees.
The court also opines that, in the bench’s view, the insistence on wearing of purdah, veil or hijab hinders women’s anticipation, and is opposed to the constitutional values of equal opportunity, public participation and positive secularism. (Interestingly, the petitions have nothing to do with the purdah/veil, and deal only with the students’ right to wear hijab/head scarf). “Prescription of school dress code to the exclusion of hijab, bhagwa, or any other apparel symbolic of religion can be a step forward in the direction of emancipation and more particularly, to the access to education … [T]his does not rob off the autonomy of women or their right to education inasmuch as they can wear any apparel of their choice outside the classroom”, it says.
The court also lends credence to the theory that “some ‘unseen hands’ are at work to engineer social unrest and disharmony” by expressing dismay at the issue “blow[ing] out of proportion” in the middle of the academic term, when the present dress code at one of the respondent institutes had been in place since 2004 without any dispute till December last year.
Appeals have already been filed against the Karnataka High Court’s decision before the Supreme Court, which has agreed to list for hearing the pleas after its Holi vacation.
The court opines that, in the bench’s view, the insistence on wearing of purdah, veil or hijab hinders women’s anticipation, and is opposed to the constitutional values of equal opportunity, public participation, and positive secularism. (Interestingly, the petitions have nothing to do with the purdah/veil, and deal only with the students’ right to wear hijab/head scarf).
Lawyer and constitutional law scholar Gautam Bhatia has written that the judgment is incorrect and should be overturned on appeal, for the following reasons:
“[F]irst, it mistakenly holds that the rights to freedom of expression and to privacy are diminished, or derivative, in this case; secondly, it misapplies the reasonable accommodation test, and does not show how allowing the hijab for those who choose to wear it, as a uniform accessory, is incompatible with the goal of education; thirdly, it fails to consider that the ban amounts to indirect discrimination against Muslim women; and fourthly, it wrongly elides freedom of conscience and religious freedom. This creates an overarching framework of reasoning where the sanctity of the uniform is placed above both the goals of education, and the exercise of constitutional rights.”
Considering the questionable analysis of the high court, especially in answering the second question framed by it, as well as a slew of statements made through the judgment that betray the bench’s predilections on the subject of wearing hijab, one is inclined to agree with Bhatia.