Legal luminaries slam Karnataka High Court hijab verdict as being violative of constitutional provisions

The Karnataka High Court order which upheld the state government’s bar on hijabs in classrooms by stating that wearing a hijab was not an essential religious practice impinges upon basic freedoms to which citizens are entitled under Article 14, Article 19(1) and Article 21 of the Constitution, several senior Supreme Court lawyers have said.

The three-judge bench stated that they were of the “considered opinion that wearing of hijab by Muslim women does not form a part of essential religious practice in Islamic faith” and refused to strike down the state government's ban and dismissed the petitions by five Muslim students. The High Court added that wearing of school uniform is a reasonable restriction that students cannot object to.

Article 14 states that the government shall not deny to any person equality before the law or equal protection of the laws within the territory of India. Article 19(1) of the Indian Constitution states that every citizen has the right to freedom of speech and expression. Article 21 assures the right to live with human dignity, free from exploitation.

Senior advocate Rajeev Dhavan asserted that essential practices do not just mean the text; it means what people live by. “Nobody can say Muslims do not wear the hijab, because they do wear the hijab and it is regarded as an essential practice. The subjective view of the court examining Islam and the hijab is unwarranted,” he maintained.

The State does not empower a judge to tell a person what their religion is, pointed out Dhavan. “Under Article 25, the freedom of religion is protected. You cannot tell someone this is not your religion when they have been practicing it for decades and when they believe in it. The subjectivity of the court cannot override the facts that confront you in society,” he said.

Freedom of Religion is an independent right, so the question of reasonableness does not come into it, he added. “Otherwise, it could be argued that my belief in God is not reasonable,” Dhavan said.

Reacting to the order, senior SC advocate Huzefa Ahmadi underscored that this judgement impinges on basic freedoms under Article 19 and Article 21. “Whatever restrictions that are made by the state should be taken in public interest. The effect of the ban would be to discourage several people from taking basic education. So, the restriction is arbitrary and violative of Article 14. After a sustained campaign, a lot of Muslim women have started taking basic education and have begun to go to school and colleges,” said Ahmadi.

An order such as this, which imposes a restriction, will result in pushing children back to madrasas and away from secular education pointed out Ahmadi, and this is neither in public interest nor in the interest of the nation. The question is about judging the arbitrariness of the law in the context of equality under Article 14. Public interest lies in educating your masses and it is a fundamental right under the Right to Education. It also was a part of the directive principles.

Several senior advocates including Rebecca John are of the opinion that the argument that wearing of the Hijab as an essential religious practice was unnecessary.

The argument should have been about the right to choice, maintained John. “As a woman and a feminist, the argument is about the right to choose. Whether or not it is an essential religious practice is not for the courts to say. What I wear and if I want to cover my head, or not want to cover my head, should be my choice,” added John.

Would it be possible for the courts to uniformly state that no religious symbols can be displayed in schools and institutions, asked John, while pointing out that this would mean no bindis, tilaks or turbans. “The court can’t apply rules differently for different people. I think the logic that there should be uniformity in schools is a farcical argument to make in a country like India where we are overwhelmed by religious symbols all around us. Don’t change positions according to convenience,” added John.

Echoing the thoughts of many law scholars, senior human rights lawyer Flavia Agnes asserted that the judgement was more political than legal, and will have wider ramifications.

“I see the judgment as having a wider significance than just the hijab. It makes a distinction between freedom of religion and freedom of conscience. The court seems to imply that freedom of conscience exists only for those who do not profess a religion,” said senior Supreme Court lawyer Sanjay Hegde, who had argued this case in the Karnataka High Court.

This case has not been seen through the constitutional lens, criticised Hegde, who pointed out that the order targets not just Muslim women, but Muslims as a whole. “This has placed a believer in a position where they have to either stifle their conscience or not educate themselves,” observed Hegde.

However, the former Attorney General for India Mukul Rohatgi said he welcomed the Karnataka High Court judgement. He said that he thinks that in schools dress-codes are a must. "No person should be allowed to proclaim that they are practicing a religion in classrooms. This should not be allowed for any community. A bindi or a cross is unobtrusive and the turban has been there for thousands of years. Wearing of a hijab in schools by young girls commenced only in the last three months," claimed Rohatgi.

When it was pointed out that women have been wearing hijabs to schools for decades, he countered it stating "No, not at all". He added that they must have been wearing it in schools without a dress-code. "This case was decided on the basis of an educational institution, not workplace or market place. This country is secular, but you do not have to wear your secularism on your sleeve," added Rohatgi.