SC resumes hearing challenge to ban on hijab in Karnataka educational institutions

A Supreme Court bench comprising Justices Hemant Gupta and Sudhanshu Dhulia on Monday began hearing a batch of 23 petitions challenging the ban on wearing hijab or the head scarf in educational institutions in Karnataka.

On March 15, 2022, the Karnataka High Court had upheld the hijab ban, which prohibits female Muslim students from wearing the headscarf in certain pre-university colleges, by stating that wearing of head scarves by Muslim women was not an essential religious practice in Islam.

Beginning the arguments in the case, Senior Advocate Sanjay Hegde questioned if anyone can be debarred from class for wearing a particular style of dress and if the education of women be made contingent on not wearing a particular dress.

Hegde noted that this was an incident in Udupi and it blew out of proportion due to dynamics of politics. “The girls who wore hijab to school faced discrimination, were made fun of and also were asked to stand outside the classroom. When parents informed that there was consent for wearing hijab from school, the school principal candidly said it was not a requirement,” he told the Supreme Court.

Hegde prayed for the bench to check whether as per Section 133(2) of the Karnataka Education Act, it was mandatory for students to wear uniforms as mandated by the governing body of colleges. The Act broadly empowers the government to state that a uniform style of clothes has to be worn compulsorily, but the private school administration can choose a uniform of their choice.

He asked whether access to education is conditional, especially when women are the more vulnerable sections of the society. Responding to this, Justice Gupta noted that they understood that access to education would be denied if hijab was not allowed.

Referring to the Karnataka Education Act, Hegde pointed out that Section 39 of the Act prohibits denial of admission on grounds of religion/caste etc and wounding of religious feeling. “Even under Section 133, the powers of state to give direction on uniforms are subject to other provisions of the Act and the rule making power,” argued Hegde.

“The government order stating that one can't wear a uniform showing your religion creates a substantial disadvantage to Muslim women,” he observed.

Justice Gupta noted that though wearing a headscarf might be a religious practice, the question was if the hijab can be worn to a school where a uniform is prescribed. Responding to this, Hegde stated that the question was if education be denied.

Hegde wanted to equate the hijab with the dupatta, but Justice Gupta insisted that the dupatta was different and is worn on the shoulder.

Justice Gupta pointed out that the Indian Constitution states that ours is a secular country. “Can you say that in a secular country religious clothing has to be worn in a government-run institution? This can be an argument,” said Justice Gupta.

Appearing for one of the petitioners, senior advocate Rajeev Dhavan quipped that though courts too have prescribed dress code, in Court 2 there was a picture of a judge wearing a turban (pagdi). Justice Gupta rushed to note that the pagdi is not religious and that his grandfather would wear it while practicing law.

“It was suggested that scarf be of same colour of uniform. Even in this court some women are wearing it, but can they asked be to remove it in schools? What this court will rule, the whole world will look at it. Hijab affects women across the country and globe,” reiterated Dhavan.

He also pointed out that there were two inconsistent High Court orders. An order by the Kerala High Court states that the hijab is permitted and one by Karnataka High Court says it’s not. “What the Indian Supreme Court holds in this regard will be very important,” asserted Dhavan.

Additional Solicitor General KM Nataraj, appearing for Karnataka, said that the issue was limited to only that of discipline in school. “They are taking up other issues. State was very conscious, that we will not prescribe uniforms. As per Rule 11, uniforms are prescribed by the institutions. We directed institutions to prescribe uniforms. Some of the institutions prohibited hijab and those resolutions have not been challenged,” added Natraj.

When Justice Dhulia questioned how the discipline of school was violated if a Hijab was worn, Natraj pointed out that after a few students began to insist on wearing the hijab, another set of students wanted to wear saffron-coloured shawls. “This led to a situation of unrest and in this backdrop, the government order was issued on February 5,” he said.

A full bench of Karnataka High Court comprising Chief Justice Ritu Raj Awasthi, Justice Krishna Dixit and Justice JM Khazi held that wearing of hijab by women was not an essential religious practice of Islam. It held that the uniform dress code in educational institutions was not a form of discrimination.

The case will be next heard on Wednesday, September 7, 2022.