Hijab not part of fundamental right to freedom of expression: Respondents before the Supreme Court

KARNATAKA Advocate General P. Navadgi argued before the Supreme Court's division bench comprising Justices Hemant Gupta and Sudhanshu Dhulia that not every religious practice is protected by Article 25 of the Constitution, and that there is no fundamental right to wear the hijab in the classroom in defiance of prescribed uniform.

The bench continued to hear today a batch of petitions challenging the ban on wearing hijab in educational institutions in Karnataka based on the Karnataka Government Order on Dress Code for Students ('GO') and the Karnataka Education Act, 1983, which was upheld by the Karnataka High Court on March 15. Today was the ninth day of hearing.

Karnataka Advocate General P. Navadgi's arguments

Referring to a catena of past decisions of this court holding that triple talaq, polygamy, offering of namaz at a mosque and cow slaughter are not essential religious practices within Islam, he submitted that it was imperative for the petitioners to show that donning the hijab was an essential religious practice within Islam to seek protection of Article 25.

He gave the following five pointers to determine whether a religious practice is essential to the religion:

1. The practice must be fundamental to the religion from times immemorial;
2. Not following the practice would alter the nature of the religion;
3. The practice must be compelling;
4. The punishment for not following the practice must be prescribed in the religious text;
5. The practice must be essential to the religion, and not essentially religious.

According to Navadgi, since there are countries that have banned women from wearing hijab and not all Muslim women in India wear the hijab, this demonstrates that it is not an essential religious practice within Islam. He further argued that since the hijab is not an essential religious practice, the court must look squarely into the reasonableness of the restriction on students imposed by the prescribed school uniform.

Addressing Justice Dhulia's remark that the Karnataka High Court shouldn't have gone into the essential religious practices test, Navadgi informed the bench that the high court dealt with the matter only because the petitioners had raised the same before it.

With regard to the reasonableness of the restriction and the petitioners' contention that wearing the hijab is part of the fundamental right to freedom of expression under Article 19(1)(a) of the Constitution, Navadgi argued that the dominant objective of the GO was to inculcate discipline into students through regulating uniform, and any incidental effect of the same on students' rights under Article 19 cannot be grounds to invalidate the GO or the 1983 Act itself. He relied on the court's Bachan Singh judgment of 1980 to buttress this argument.

He further submitted that the GO stemmed from the state government's power under Rule 11 of the Karnataka Educational Institutions (Classification, Regulation and Prescription of Curricula etc.,) Rules, 1995, which has not been challenged by the petitioners.

He emphasised that the prohibition on the hijab is only inside the classroom, and students are free to wear it outside the classroom, even within the school campus. He also stated that the objectives of the prescribed uniform are two-fold: to bring together all the students in the same plane, irrespective of economic background, and to enable them to rise above their religious identities and become part of one group, as per Article 51A(j) of the Constitution.

He also expressed scepticism about the petitioners' claim that wearing the hijab inside the classroom is part of the fundamental right to expression, questioning what exactly is meant to be expressed by donning the hijab. He reiterated that wearing anything in defiance of a prescribed uniform in not a fundamental right.

Navadgi also addressed the public order element in the case, reiterating the conspiracy angle referred to by Solicitor General of India, Tushar Mehta, in the hearing yesterday, and implying that students had been intimidated into demanding the wearing of hijab in the classroom through a "ripple effect".

Addressing the petitioners' argument relating to the violation of the privacy under Article 21 of the Constitution, Navadgi averred that as per the Supreme Court's Puttaswamy judgment of 2017, privacy is a "developing jurisprudence", and cannot be exercised in all zones, one such zone being the classroom.

Navadgi also sought to dispel the notion that the GO targets Muslim students, stating that the state government runs several welfare schemes and programs for students from minority communities. He further framed the dispute as one between schools and students, rather than the government and students, and stressed that the relationship between the school and the student is a quasi-parental one, where an analysis from the lens of fundamental rights may not be appropriate.

Additional Solicitor General of India, K.M. Nataraj's arguments

Additional Solicitor General of India, K.M. Nataraj, argued before the bench on behalf of the state government. He began by emphasising that the GO is not a ban on hijab, but only a prescription of religion-neutral uniform.

He submitted that the GO protects Article 14 of the Constitution by treating students from all communities equally. He further argued that Article 25 rights are regulated by Article 14, and that there cannot be religious symbols in secular educational institutions. He placed reliance on a catena of Supreme Court judgments that have similarly held that Article 30 of the Constitution does not confer any absolute rights, and can be regulated.

He stressed that the GO's objective is to promote oneness and national integration. He asked if a person can refuse to show their face during security check at an airport, claiming the burqa as their fundamental right, or ask to perform hawan at the India Gate or in court as part of their fundamental right.

Concluding his arguments, Nataraj submitted that there was no requirement of referring the matter to a Constitution bench, since this is a simple case of discipline, and no one has been discriminated against on the ground of religion.

Senior advocate R. Venkataramani's arguments

Senior advocate, R. Venkataramani argued on behalf of an Udupi college teacher. He began by submitting that rights are to be exercised in their respective domains, and shouldn't be projected into other rights' domains. Elaborating further, he questioned whether an alleged violation of an Article 25 right can be a problem under Article 19.

He submitted that the school is a unique public space, where public order has a different connotation. Fundamental rights take a different shape here, according to him. He further submitted that from a teacher's point of view, any religious symbol creates a "wall of separation", and that for a free atmosphere conducive to the transmission of knowledge, the school must be "free from all these elements without slightest distractions".

At this juncture, Justice Dhulia questioned whether such an approach would prepare students for the great diversity of the country when they face the world. To this, Venkataramani responded that the absence of assertion of identities is conducive to inculcate values about diversity, since the assertion of identities is bound to lead to claims of superiority. This is a distraction for teachers.

He also argued that to claim rights under Article 19, the petitioners ought to show something beyond what the Quran says. However, the hijab is based only on religious belief, and has no conscience element, which is a secular domain.

The hearings will continue tomorrow.