Karnataka hijab ban: by ignoring religious concerns, the State has violated many fundamental rights

The prohibition on students from wearing hijab in the classroom in Karnataka violates several provisions in the 'fundamental rights' chapter of the Constitution, besides hurting the cause of women's education and secularism, writes MOHD SIKANDAR.

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IN recent years, more and more government orders and legislation have targeted one community in particular in India. Whether it is the introduction of the Citizenship (Amendment) Act (CAA) or criminalization of inter-faith marriages/conversions or laws prohibiting cow slaughter, Muslims in India have been at the receiving end of a deceiving government. The most recent in the line of government mandates interfering with religious rights is the Karnataka's state government Order dated February 5. The order effectively prohibits Muslim women from wearing headscarves or the 'hijab' in public or private schools and colleges in Karnataka in the name of maintaining equality, integrity, and public order. Invoking Section 133(2) of the Karnataka Education Act, 1983, which empowers the state government to issue directions to educational institutions for purposes of the implementation of the Act, the government order says that a uniform style of clothes has to be worn compulsorily, and that the school or college administration can choose a uniform of their choice. Interestingly, however, the Act nowhere provides for issuing directions with respect to dress codes for schools and colleges.

The order came in the wake of protests by Muslim girls against certain government-run college and school administrations for denying them entry to the campus while wearing headscarves. While the order intended to put to rest the tussle between the students and the administration, the issue has snowballed into a major controversy and therefore deserves a thorough analysis.

Also read: The Karnataka hijab ban makes central the very thing that is constitutionally shunned

The ban and the law on equality

At the outset, the intentions of the Order becomes clear from its implementation, where Muslim schoolgirls have been particularly singled out to abide by the strict dress code. One wonders whether the same strictness will follow with Sikh students donning turbans, Christian students wearing crosses, and Hindu students wearing tilak. Such exclusion of Muslim girls stands in sharp contrast to the equality doctrine enshrined under Article 14 of the Constitution that guarantees every individual equality before the law and equal protection of laws.

In order to be valid, the law/order in question must make a reasonable classification between similarly situated people, and the classification must bear a rational relation to the object sought to be achieved. Neither of the two requirements is met in excluding schoolgirls wearing headscarves from attending schools, wherein such clothing has nothing to do with equality, integrity, or public order. Rather, the order seems to forcefully impose uniformity amongst diverse sections of people in the garb of equality and integrity.

Also read: Ban on hijab flies in the face of legal precedents

Discriminatory and mala fide

Significantly, the order bears the hallmark of a discriminatory State policy wherein authorities have interpreted and implemented the order along religious lines, violating the provisions of Article 15 of the Constitution. In doing so, the Karnataka government has also violated an important judgment of the Kerala High Court.

In Amna Bint Basheer vs. Union of India (2016), the Kerala high court observed that covering of the head forms a part of essential religious practices in Islam, and is therefore is protected under Article 25(1) of the Constitution. The said right can only be interfered on grounds of public order, morality, and health. Therefore, the act of exclusion of Muslim girls is wantonly arbitrary and is in derogation of Article 25(1).

Also read: Karnataka High Court's interim ban on students from wearing any religious attire is in the teeth of Article 25, counsel tells bench

A matter of personal choice and autonomy

Thirdly, the State needs to be reminded that clothing is a form of expression, and therefore protected under Article 19(1)(a) of the Constitution. It has already been laid down by the Supreme Court in NALSA v. Union of India (2014) that no restrictions can be placed on one's dressing or personal appearance unless the limitation meets the reasonable restrictions requirement as provided in Article 19(2). What one wears is a matter of personal choice and individual autonomy. The State can impose limitations only to the extent of ensuring decency, morality, and public order.

A hijab itself is a sign of decency or modesty cannot possibly raise questions of decency, morality, or public order.

Throwing right to education out of the window

Caught in this controversy is the very future of many girls who are denied education on superfluous grounds. The restriction only confounds the issue of low female literacy rate. The State has a positive duty to ensure education for all and by imposing undue restrictions, the State is virtually creating barriers for Muslim girls in accessing education. By acting in such a manner, the Government of Karnataka has not only violated Article 46 of the Constitution, but has also acted in derogation of the Supreme Court ruling in Farzana Batool (2021), in which the court reiterated the State's affirmative obligation to facilitate access to education at all levels.

Indian model of secularism

Lastly, the concept of secularism in India is different from what it means in Western countries. The Indian concept of secularism is built on the idea of respect for all religions. In following this notion, no law can neither give preference to any religion nor ignore the religious interests of different sections of people. In recognizing the deeply religious nature of our society, the Indian form of secularism is more pragmatic and comprehensive.

Also read: In defence of hijab, counsel cites India's policy of positive secularism

Women's double burden

There is no need to re-emphasize the point that Indian women suffer from the double burden of discrimination on grounds of religion and sex. The Government Order to that extent has only created hurdles for girls in receiving education which they deserve as a matter of right. Like others, girls of all ages have a constitutional right to education. Religion should not come in the way of that.

Any restrictions imposed by the government cannot ignore its wider impact on society. A society as diverse as ours can co-exist and prosper only when the interests of all sections are taken into consideration. A law must necessarily give leeway to the greater good. Even with the good intention of creating uniformity and equality in classrooms, the law cannot ignore its societal implications.

(Mohd Sikandar is a legal scholar, with an LL.M. from NALSAR University of Law, Hyderabad. The views expressed are personal.)