As the Congress government in Karnataka makes overtures for overturning the ban on the hijab in educational institutions in the state, a look back at the two years of struggle.
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YESTERDAY, the Chief Minister of Karnataka Siddaramaiah gave a signal that the Order banning the hijab in educational institutions in Karnataka will be withdrawn.
“We will take back that decision, there is no hijab ban now. Women can go out wearing hijab. I have told the officials to take back the order (previous government Order). Dressing and eating food is our choice, why should I object? Wear whatever dress you want, eat whatever you want, why should I care? We should not do politics to get votes, we don’t do that,” Siddaramaiah was quoted to have said.
When the hijab ban was imposed on pre-university students in Udupi, Karnataka early last year, it had led to a lot of hue and cry. Educational institutions were closed indefinitely in the district. In some cases, the ban created safety concerns for Muslim female students, who were attacked for wearing the hijab to school.
Nearly two years later, we have had a lot of litigation, from the lowest judiciary to the highest court in the land, high school dropout rates and, of course, a whole lot of politics at the cost of the aggrieved students who lost precious academic time.
The background
In December 2021, in the middle of an academic year, six Muslim girls were barred from entering a government-led women’s pre-university in Udupi. The students had just returned to the physical classroom after the pandemic when they were informed that they would not be permitted to enter school premises wearing the hijab.
On January 1, 2022, the chairman of the College Development Committee, a committee to make proper use of government grants and make rules and codes of conduct for educational institutions, etc., passed a resolution stating that students wearing the hijab would not be allowed to enter the college premises. The administration claimed that the hijab was banned within the university premises to ensure “uniformity” among students.
On February 5, 2022, the Karnataka government issued the Government Order on Dress Code for Students (GO) under Section 133(2) (powers of the government to give directions) of the Karnataka Education Act, 1983 and the Karnataka Educational Institutions (Classification, Regulation and Prescription of Curricula etc.,) Rules, 1995.
The GO directed “students of all government schools to wear the uniform fixed by the State”.
The GO stated that for colleges falling under the Karnataka Board of pre-university education, the dress code prescribed by the college development committee or the administrative supervisory committee will be followed.
The GO also noted: “If the administration does not fix a dress code, clothes that do not threaten equality, unity and public order must be worn.”
The GO further stated that students of private schools “may wear uniforms prescribed by the management committee of the school.”
Aggrieved by the GO, a group of Muslim female students of PU College approached the Karnataka High Court challenging the hijab ban in educational institutions.
In the petition, the students claimed that they were stopped at the entry gate of the college. They were insulted, humiliated and instructed to remove their headscarf by the college principal and other staff members.
The petitioners challenged the ban on various grounds including that there is a right to wear the hijab as part of the essential religious practice protected under Article 25 of the Indian Constitution.
It was also argued by them that an executive Order cannot put restrictions on fundamental rights guaranteed under Articles 19 and 25 of the Constitution as held in the Bijoe Emmanuel & Ors versus State of Kerala & Ors (1986).
A single judge of the Karnataka High Court, Justice Krishna S. Dixit, ordered that the matter be heard by a larger Bench in “regard to the enormous public importance of the question involved”.
During this time, there were agitations by students, including those who wanted entry into colleges wearing saffron and blue shawls and other symbolic clothes and religious flags. Because of this, the state government closed educational institutions for an indefinite period.
When a three-judge Bench of the Karnataka High Court took up the case, it passed an interim Order prohibiting the wearing of any religious clothing till a final Order was passed, considering that the closure of educational institutions was detrimental to the career of students.
On March 15, 2022, a three-judge Bench of the Karnataka High Court headed by Chief Justice Ritu Raj Awasthi and comprising Justices Krishna S. Dixit and J.M. Khani upheld the hijab ban.
The judgment said: “The prescription of school dress code to the exclusion of the 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.
“It hardly needs to be stated that this 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.”
The court further noted: “We are dismayed as to how all of a sudden that too in the middle of the academic term, the issue of the hijab is generated and blown out of proportion by the powers that be. The way the hijab imbroglio unfolded gives scope for the argument that some ‘unseen hands’ are at work to engineer social unrest and disharmony. Much is not necessary to specify.”
The high court’s judgment was appealed against before the Supreme Court through a batch of special leave petitions. During the hearings, among other issues, it was pleaded by the petitioners that the court must take a narrow interpretation of the issue and must not go into determining questions of essential religious practice.
On October 13, 2022, a Supreme Court division Bench comprising Justices Hemant Gupta and Sudhanshu Dhulia gave a split verdict on the issue.
Justice Gupta chose not to determine whether the hijab was an essential religious practice, but held that the GO was a reasonable restriction on the right to religious freedom under Article 25(1).
Justice Dhulia, on the other hand, held that the issue primarily revolved around the infringement of Articles 19(1)(a) (right to freedom of speech and expression) and 25(1) (freedom of religion) of the Constitution.
Justice Dhulia observed that the Karnataka High Court was wrong in going into the essential religious practice debate. His judgment noted that the GO led to the invasion of privacy and dignity of female students who were asked to remove their hijab at the school gate. This ultimately denied a secular education to girls and violated Articles 19(1)(a), 21 (right to life and personal liberty) and 25(1).
Justice Dhulia quashed the GO and the high court Order, stating that wearing the hijab is ultimately a matter of choice. He drew a parallel to the Bijoe Emmanuel case, where three students belonging to the Jehovah’s Witness faith were expelled from school for not singing the national anthem.
The students had, however, stood there respectfully when the anthem was being played. Their expulsion was challenged before the Supreme Court, which held that the children sincerely believed that their faith prohibited them to sing the national anthem. This is protected under their right to religious freedom.
Justice Gupta observed that Karnataka’s GO was to ensure parity amongst students in terms of uniforms. As per his opinion, the GO promoted uniformity and encouraged a secular environment in schools.
Because of the split verdict, the matter was referred to a larger Bench.
The matter was mentioned by senior advocate Meenakshi Arora before the Supreme Court on January 23, 2023 for interim directions to permit Muslim girl students to appear for exams. However, the court refused to issue directions but agreed to list the plea soon.
The matter was mentioned again in February by advocate Shadan Farasath.
Again, when the matter was mentioned on March 3, with exams due in five days, the Supreme Court did not take up the matter citing inconvenience as the case was mentioned at the last minute.
The counsel pleaded that the matter had been mentioned on two occasions earlier, but the Supreme Court ultimately failed to hear the case.
Aftermath
A study by the leading civil rights organisation, the People’s Union for Civil Liberties, Karnataka revealed that the hijab ban resulted in more than 800 dropouts of Muslim girl students in Karnataka.
As per Closing the Gates of Education: Violations of the Rights of Muslim Women Students in Karnataka, over 400 students were denied entry or were suspended from colleges and missed classes because of the hijab ban.
The Karnataka hijab ban inspired other colleges within Karnataka and outside the state to put similar bans in place.
In January 2023, the Hindu College in the Moradabad district of Uttar Pradesh denied entry to Muslim girl students clad in the hijab and burqa. The students alleged that the college administration had compelled them to remove their headscarves at the university entrance.
According to the college administration, they were not allowed to wear headscarves as per the dress code for students prescribed by the college.
Some unanswered questions
The withdrawal of the Order may expose several questions to the Sun.
Will the faction that sought to impose the ban in the first place continue the judicial fight on the matter?
If they do decide to fight on, what would be the contours of that fight? Those aggrieved at the ban Order and the court decisions upholding it, claimed to be fighting for their fundamental rights under Articles 19, 21 and 25. What would be the case for those supporting banning the hijab?
Already, Bharatiya Janata Party (BJP) leader and Union minister Giriraj Singh, minister of rural development and panchayati raj department, has said the withdrawal of the ban will lead to “establishment of Shariah law” in the state. Perhaps of the kind that existed before the ban.
Another BJP leader and member of the legislative assembly from Shikaripura, Karnataka, B.Y. Vijayendra even accused Siddaramaiah of “vitiating” the academic atmosphere by lifting the ban.
He said: “CM Siddharamaiah’s decision to withdraw the hijab ban in educational institutions raises concerns about the secular nature of our educational spaces. By allowing religious attire in educational institutions, Siddharamaiah’s government is dividing young minds along religious lines, potentially hindering the inclusive learning environment.”
If the withdrawal of the ban is implemented and left unchallenged in the judiciary, who is going to account for the precious academic time wasted of hundreds of young Muslim women in Karnataka, not to speak of the psychological trauma caused to them?
Whichever way the case ends, there is only one category of people whose lives have been negatively impacted by the ban.
Muslim female students.
