Is Hijab Ban in Educational Institutions Unconstitutional?
Authored by Saumya Ranjan Dixit, a 2nd-year student of National Law University, Odisha
The recent hijab controversy in Karnataka began on 1st January this year at the Government PU College in Udipi, barring six female students from entry into the classrooms for wearing hijab. Thereafter, on 5th February 2022, the Government exercising its power under Section 133(2) of the Karnataka Education Act, 1983, ordered College Development Committees across the state to fix uniforms for all students, thus, disallowing hijab in schools to attain public order and fraternity. This order was contested in the Karnataka High Court, which rejected the petitions upholding the validity of the hijab ban in educational institutions. However, upon appeal, the Supreme Court gave a split verdict, and the case is presently referred to the CJI to set an appropriate bench to decide the matter. In this article, given the backdrop of events, the author supports the wearing of the hijab in educational institutions as a valid exercise of Constitutional rights and attempts to figure out the flaws in the judgments of the Karnataka High Court and the honourable Supreme Court.
Augmenting the Freedom of Expression and Religious Choice
Article 19 (1) (a) of the Indian Constitution secures freedom of speech and expression, which involves both verbal and non-verbal conduct, such as mannerisms, clothing, etc., as an effective medium of expressing a person’s identity. It is a matter of choice and not a coercive imposition upon the petitioners. It was held by Radhakrishnan J. in NALSA v Union of India as
“No restriction can be placed on one’s personal appearance or choice of dressing, subject to the restrictions contained in Article 19(2) of the Constitution.”
This view also found a place in K.S. Puttaswamy v Union of India, where Chandrachud J. stated that the liberty of an individual to decide upon one’s preferences is indispensable for the fulfilment of freedom of speech and expression. Wearing of hijab can also be seen as a preference decided upon by Muslim girls in the exercise of their liberty which is quintessential in realizing the fruits of freedom of expression.
Moreover, the argument that the violence in Karnataka to disallow hijab led to public disorder, which is a reasonable restriction under Article 19 (2), does not hold water. It is because it’s not wearing hijab instead the enforcement of government order and subsequent counter-protests are the reasons for such disorder. This is proven by the fact the girls were wearing hijabs even before the alleged order, which did not cause any form of violence.
It is rightly pointed out by Dhulia J. in Aishat Shifa vs The State Of Karnataka & Ors that the approach of the Karnataka High Court in assessing the wearing of hijab as an Essential Religious Practices (ERP) is irrelevant to the dispute as the protection is sought under Article 25 (1) which states about freedom of conscience and to profess, practice and propagate religion. Although the ERP only is meant to be protected by the State, this does not license assailing other integral practices which do not qualify for the higher threshold set for ERP. It was stated in the Shrirur Mutt case that the Constitution protects not only the doctrinal belief of religion but also the acts done in observance of the religion that, includes the matter of food and dress, and they cannot be made amenable to State actions merely because they are not an essential part of the religion. This view gained further clarity in Ratilal Panachand Gandhi v. State of Bombay and Ors that the State regulations cannot be imposed upon practices of religion, which are otherwise protected unless they affect public order, morality and health.
So, it can be inferred that the simple faith and belief of the Muslim girls in their religion harming no one can be seen as their freedom of conscience that cannot be restricted by any unreasonable order. This appears as a religious choice which needs to be respected rather than compelling them to prove it as religious compulsion under the ERP test. In the present case, as the girls were simply exercising their conscience, faith and religious choice, it is against the essence of Article 25 to rob them of their religious freedom.
However, Hemant Gupta J., in the present case, stated that the Government order promoted uniformity and secularity, so the restrictions are in accordance with Article 14 and, thus, reasonable. But this seems contradictory as he cited a statement of Ms. Aruna Roy & Ors. v. Union of India & Ors. that
“Even if there are differences of opinion in certain areas, people have to learn to coexist and carry no hatred against any religion.”
This shows the motto of secularism to accommodate diversity by accepting the heterogeneity of religions instead of seeking forced uniformity. In order to develop the attributes of secularism, it needs a pre-requisite of diversity which then is to be accommodated among all and accepted as well. However, the honourable justice assailed the very foundation of secularism by squeezing out diversity from the public arena, which is not welcoming.
Reinventing The Right to Privacy and Dignity
One of the reasons given by the Karnataka High Court supporting the hijab ban is that schools are considered to be “qualified places”, so individuals’ rights and freedoms can be restricted to maintain discipline and decorum of the institution. This reasoning is flawed for two reasons, and firstly, it cannot be expected of someone to let go of one’s fundamental rights, which are the basic human rights at places like schools which are generally considered to be public places. It is rational to think that fundamental rights, as the term suggests, are intrinsic in nature and are inalienable except by reasonable restriction. And, designating a place to be “qualified” to restrict basic human rights is against the ethos of the Constitution. Secondly, the function of the court is to examine the constitutional validity of a restriction and not to invent new restrictions. The High Court’s creation of new criteria to disrupt the fundamental right is contrary to the power granted to the judiciary, whose sole function is the interpretation of the law, not an invention of it.
Further, the views of Hemant Gupta J. prioritizing wearing of uniform over attaining the aim of education and at the cost of dignity is flawed. As isolating one’s right to dignity for the protection of another right is antithetical to the very object of such protection. Sacrificing one fundamental right to protect another is no protection at all. Also, ‘wearing of uniform’ is a means to achieve the end goal of uniformity in education and not an end goal per se. The end goal can be achieved by a better way of accommodating diversity and fostering uniform education for them as this method is sans conflict of interests of any group.
Gupta J. also opined that the government order “reinforces the right to equality” too appear flawed as it has been held by Chandrachud J. in the Sabrimala case that the role of equality is to act as a bulwark for liberty even in matters of religion. It was also held that
“Individual dignity cannot be allowed to be subordinate to the morality of the mob.”
This wider view is welcoming in the sense that it shakes the foundation of the flawed idea of ensuring “uniformity” among all by subjugating the dignity of individuals.
This ban seems more dangerous when viewed from a socio-political perspective apart from the legal one. It tends to show the power of the majoritarian population in dictating the dress code in educational institutions, which could lead to a serious religious divide in India. Therefore, multiple dimensions need to be considered to set a judicious and rational precedent free from all political influences.
Suggesting A Way Out
Efforts are to be made for reasonable accommodation, which is believed to have been exercised implicitly in Bijoe Emmanuel and Ors. vs State of Kerala and Ors that was rejected by Gupta J. in the present case. In that case, three children who were Jehovah witnesses refused to sing the National Anthem in the school assembly as it was against the tenets of their religious beliefs. As a result of which, they were expelled from the school. In that case, Chinnappa Reddy J. held that if the belief and faith are genuine and conscientious, then it affords the protection of Article 25, and the expulsion violated the tenets of Article 25. Following the same view, the hijab needs to be accommodated along with the uniform to allow the real exercise of freedom of religion and maintain secularism.
It needs to be realized that allowing hijab in educational institutions is a way to recognize the dormant rights of Muslim girls. This is in line with the vision of the drafters of our Constitution to establish transformative Constitutionalism prioritizing individuals over the prevailing morality of society. This vision needs to be reinforced, and the present case provides the best opportunity to shatter the shackles and enlighten everyone with the objectives of Constitutional morality.