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  • Yerram Geetha

Challenging the Status Quo: Legal Perspective on Hijab Ban and Discrimination 

Yerram Geetha,

Koneru Lakshmaiah Education Foundation, College of Law

Hijab Ban and Discrimination 

INTRODUCTION

UNVEILING THE LEGAL LANDSCAPE

Female Muslim students who have been denied entry into their institutions due to the ongoing issue around the hijab are suffering from mental anguish and feeling discriminated against by their peers and college administration.

We no longer have mental serenity, to start. Secondly, this topic caused us to have a lot of disagreements with our Hindu peers. It all started in December 31st, 2021 when six female students at Udupi's Government PU College for Girls were forbidden from wearing headscarves to class. Since then, while they fight for their rights, numerous girls from various facilities have experienced a great deal of mental hardship.

Regarding the issue, the girls have filed a petition to the National Human Rights Commission and filed a writ petition at the Karnataka High Court. The college administration forbade the students from wearing headscarves to class, which they allege violates their fundamental rights.[i] The government decision directing the College Development Committees to forbid headscarves in classrooms.2 As evidenced by the Karnataka hijab incident, discrimination and shame can be hard to notice. A slum dweller gave up his religious identity after a young Muslim child was spanked for being born a Muslim. Why are uniforms all-inclusive? In what way are religious symbols permitted in schools? was inquired about by the court. The highest court in the nation, known as the sentinel on the qui vive, heard the case. After vigorous debates over eleven days, a divided decision was reached. Nearly a year after the judgment, the case is awaiting listing. The government order (GO) that solidified the dispute continues to exist in practice even after the state government was reorganized. Karnataka's Muslim females are still in excruciating pain.[ii]  

In February, Hindu boys began wearing saffron stoles at some colleges, leading to the ban on hijab-clad women attending classes. Bhandarkar's college in Udupi became the first private institute to bar entry to hijab-clad girls. The students maintained that the rules did not prohibit hijab if it matched the uniform. The Education Department issued an order mandating the government-approved uniform in schools, and the protest spread to different parts of the state. The Supreme Court passed an interim order prohibiting students from wearing religious clothing, but the Supreme Court declined an urgent hearing. Security increased in Udupi, and PU colleges were ordered to remain closed until February 15. A FIR was filed against 15-20 students for violating prohibitory orders. The High Court concluded the hearing after 11 days, reserving a verdict, and ruled that wearing hijab is not essential religious practice.[iii] 

CONSTITUTIONAL GUARANTEES SAFEGUARDING RELIGIOUS EXPRESSION:

The Indian Constitution guarantees freedom of thought, speech, belief, faith, and worship. Article 25 acknowledges the freedom to practice religion and promote religion, including the right to a free conscience. The ban on hijabs is only permissible if it can be traced back to public order, morality, health, or other fundamental rights. The government believes wearing a headscarf is not an essential religious practice and therefore not protected under Article 25. However, wearing religious symbols or clothing is an exercise of free expression under Article 19 of the Constitution. Clothing has been recognized as a form of free expression by both Indian and foreign courts. The Supreme Court declared ‘privacy’ a basic right, stating that protection from the State's gaze is necessary to allow individuals to maintain their beliefs, choices, and personalities. The hijab ban impacts various rights and fundamental principles.

“The prohibition on hijabs is only justifiable if it can be meaningfully linked to one of these justifications. It is unclear how the restriction is necessary to maintain public order, health, morality, and other fundamental rights.”

Legal critiques of the decision in Resham v. State of Karnataka

The hijab ban controversy began when a group of students were barred from college for wearing hijab. The Karnataka high court upheld the state government's order, banning religious wear. The petitioners argued the government has no authority to prescribe uniforms, while the respondents argued that religious clothing should not be allowed in the compound. The ban on hijab has not violated Muslim women's rights, but has led to closure of educational institutions and public order issues.

Article 19 and 25 of the Indian Constitution allow freedom of speech and conscience to practice religion, but the state can impose restrictions for public order, decency, morality, and other state interests. The Supreme Court has used practice tests to determine essential religious practices, but critics argue it should focus on public order. In Resham and Anr v. the State of Karnataka, Muslim students protested against a government order to wear hijabs and burqas, which are not part of the uniform. Lawyers argue that the secular court cited in Sharia claims hijabs are essential religious practices and mandatory for Muslim women, and that a uniform is a reasonable restriction on the right to religion. CJ Ritu Raj Awasthi raised questions about the legality of wearing a hijab as an essential religious practice, whether school uniforms are legally permissible, and whether the government order issued on February 5th is arbitrary. The Karnataka high court argued that the word hijab is not a religious requirement but a directory for social security and access to the public domain. The petitioners argued that the court created a dichotomy between freedom of religion and conscience and overlooked the Karnataka education act 1983, which does not mandate uniforms.[iv] 

Justice Sudhanshu Dhulia Wants Karnataka Order Banning Hijab in Schools Struck Down:

Quashing the government decision, the judge stated that the question before the Supreme Court is whether "we are making the life of a girl child any better by denying her education, merely because she wears a hijab!"

The Supreme Court of India has ruled in Favor of two second-year students, Aishat Shifa and Tehrina Begum, who were denied entry to their college due to their hijab wearing. The court ruled that the government order banning hijab in government schools violated their Fundamental Rights under Article 19(1)(a) and Article 25(1) of the Constitution of India. The court considered four questions: whether wearing hijab is an essential religious practice in Islamic faith, whether prescription of school uniform is legally permissible, whether the Government Order is manifestly arbitrary and violates Article 14 and 15 of the Constitution, and whether any case is made out for initiating disciplinary enquiry. The court found that wearing hijab does not form part of Essential Religious Practice in Islamic faith, prescription of school uniform places only a reasonable restriction, and the Government Order is constitutionally permissible.

Hearing of the case:

The hearing before the Full Bench, which included Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit, and Justice JM Khazi, lasted 11 days, and judgement was reserved until February 25. Senior Advocates Devadatt Kamat, Sanjay Hegde, Professor Ravi Varma Kumar, Yusuf Muchhala, and AM Dar represented the petitioners. Advocate General Prabhuling Navadgi represented the State of Karnataka.

In this case, the Court had to decide whether wearing hijab is a fundamental religious practice of Islam and if state intervention in such matters is justified. The court was also asked to determine whether the wearing of hijab is part of the right to expression under Article 19 (1) (a) of the Constitution, and whether restrictions can only be imposed under Article 19 (2).

The petitioners also challenged a government order dated February 5, which stated that prohibiting hijab would not violate Article 25 and ordered students to follow the dress code imposed by the relevant College Development Committee. Meanwhile, the High Court issued an interim ruling prohibiting pupils from wearing any religious clothing in class, regardless of their beliefs.[v] 

India's Supreme Court has failed to deliver a verdict on whether Muslim students can wear the hijab in schools and colleges, with two judges expressing opposing views. One judge upheld a Karnataka high court order from March that said the hijab was not "essential" to Islam, while the other said the high court order was erroneous and wearing the hijab was a matter of choice. The verdict was expected to cap a 10-month-long polarizing debate in India. The judges have now requested the chief justice of India to recommend it to a larger bench. The row began in the southern state of Karnataka when a government college in Udupi district barred six Muslim girls from wearing the hijab in class.[vi] 

The impact of the ruling on the impacted students educational, social, and psychological:

Muslim students, parents, and college administrations addressed their concerns, challenges, and expectations with the High Court judgement.

Educational concerns:

The High Court decision has disrupted hijab-wearing students' academics and future aspirations. Muslim students face harassment, insults, and humiliation, while college management withholds crucial documents. Students’ express concerns about classroom safety and the prioritization of the hijab over their educational needs, leading some to view it as a distraction.

Social Concerns:

Muslim female students express strong enthusiasm for college, pursuing professional disciplines like medicine, engineering, and management. They seek social mobility, employment, and empowerment, access to Constitutional principles, and a peaceful learning environment. Muslim women in Karnataka are demanding recognition of their right to wear the hijab and resume education as a mark of their identity. The Resham v. State of Karnataka verdict has shattered their dreams and plans, closing avenues for modern education. They are forced to make a cruel choice between the hijab and education, facing social boycotts, threats, and intrusive surveillance. The hijab ban has intensified animosity and hatred within the Muslim community, with the state government implicitly sanctioning the ban. Although the percentage of Muslim women attending school and college has seen a steady increase, experts warn that the current restrictions on the hijab may harm the cause of Muslim women's education and undo progress made post the Sachar Committee report.

Psychological consequences:

The hijab controversy in Karnataka has led to students feeling isolated, fearful, and psychologically distressed. The Muslim community is anxious about the court ruling, fearing it will worsen their long-standing animosity and hatred.  

Muslim students' expectations and demands regarding the government, the court, and society:

Muslim students are seeking reversal of a court verdict and asserting that wearing the hijab in the classroom is a fundamental right guaranteed by the Constitution. They believe it is a matter of active choice and justice, not just as a matter of religion or culture. They see their right to wear the hijab as connected to decision-making power.

Violations of Muslim female students' fundamental rights protected by the Constitution:

The Karnataka High Court's hijab judgment violated fundamental rights, including the Right to Education, Liberty, Dignity, Equality, and Fraternity. Muslim women students argued for these rights and expect the court to provide constitutional remedies for their denial. The consequences have led to disastrous consequences.[vii] 

What Does International Human Rights Law Say About Hijab Bans?[viii] 

The ban on wearing the hijab in Karnataka's educational institutions raises questions about gender equality and religious freedom. The ban must be examined in light of international human rights legislation. The debate includes complex issues like gender equality, secularism, religious freedom, cultural rights, and freedom of speech. The author aims to answer three key questions: is wearing a hijab protected by IHRL?

Violations of Muslim female students' fundamental rights protected by the Constitution

Is wearing hijab protected by the IHRL (International Human Rights Law)?

In 2010, France passed Act No. 2010-1192, prohibiting wearing clothing intended to conceal the face in public spaces. Violations were punished with jail and penalties. French Muslim women Miriana Hebbadj and Sonia Yaker were penalized for wearing burqas in public. Article 18 of the International Covenant on Civil and Political Rights states that everyone has the right to freedom of thought, conscience, and religion. The UN Human Rights Committee (UNHRC) interpreted the ICCPR's scope to include customs like dietary regulations and wearing distinctive clothing. In 2018, the UNHRC ruled that wearing a burqa is protected as a right to religion under the IHRL.  

Are there any reasonable and permissible constraints on this right?

Now for the hard question: is the right to wear a hijab absolute, or are any constraints allowed under the Convention?

The right to religion, like many other rights, is not absolute. Article 18(3) of the Convention stipulates that the "freedom to manifest one's religion or beliefs may be subject only [emphasis mine] to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others".  This is analogous to Article 25 of the Indian Constitution, which states that religious freedom is "subject to public order, morality, and health" and other provisions of Part II of the constitution. France's ban on the burqa in public places was deemed in violation of gender equality and religious freedom by the UNHRC. The ban was based on the assumption that the full-face veil is inherently discriminatory and that women who wear it are forced to do so. The UNHRC also noted that the ban could confine women to the home, impeding their access to public services and exposing them to abuse and marginalization. The ban was deemed vague and not covered by the exception under Article 18(3).

CONCLUSION:

The Indian Supreme Court ruled that wearing the hijab is not an Essential Religious Practice under Islam and does not merit protection under Article 25 of the Constitution of India, 1950. Muslim students argued that wearing the hijab violates their Right to Religious Expression under Article 25. The court stated that wearing the hijab is a cultural practice and cannot be considered an essential aspect of the religion. The court also held that the ban on the hijab in State educational institutions did not violate the right to freedom of expression and privacy under Article 19(1)(a) of the Constitution. The court acknowledged that the right to choose what one wears is a facet of autonomy and expression but must be subject to reasonable restrictions. The court upheld the validity of the government order banning the hijab, stating that it was issued in furtherance of the Karnataka Education Act, 1983. The court did not direct a disciplinary enquiry against the principal and teachers of the Government PU College where students were first prohibited from wearing the hijab.[ix]  

REFERENCES:

[ii] Nabeela Jamil, Two Hijabs Cases, One Lesson, THE WIRE (13 Sep, 2023), Two Hijab Cases, One Lesson (thewire.in).

[iii] DHNS, A timeline of the hijab row in Karnataka, DECCAN HERAID (16 Mar, 2022), https://www.deccanherald.com/india/karnataka/a-timeline-of-the-hijab-row-in-karnataka-1091637.html. 5 Rahul Machaiah, Hijab ban: an assault on equality and religious freedom, THE LEAFLET (23 Feb, 2022),

[iv] Carol Merriaa Thomson, Case Comment on Resham and Anr v. the State of Karnataka, (Vol.5 Iss 3) (International Journal of Law Management & Humanities), (Page no: 1589-1591) 2022, file:///C:/Users/geeth/Downloads/Case-Comment-on-Resham-and-Anr-v.-the-State-of-Karnataka.pdf. 7 Why Justice Sudhanshu Dhulia Wanted Karnataka Order Banning Hijab In Schools Struck Down, THE WIRE (Oct 13, 2022), https://thewire.in/law/justice-sudhanshu-dhulia-supreme-court-karnatka-hijab-ban.

[v] Aditi Pandey, Hijab Is Not Essential Religious In Islam- Karnataka HC, THE NEXT ADVISOR (Mar 15, 2022), https://www.thenextadvisor.com/hijab-is-not-essential-religious-in-islam-karnataka-hc/.

[vi] Hijab verdict: India Supreme Court split on headscarf ban in classrooms, BBC (Oct 13, 2022), https://www.bbc.com/news/world-asia-india-63225351.

[vii] Impact of Hijab Ban in Karnataka’s Educational Institutions An Interim Study Report, THE LEAF LET (Sep 2022), https://theleaflet.in/wp-content/uploads/2022/09/PUCL-Report-on-Hijab-Banfinal.pdf.

[viii] THE LAW WIRE, What Does International Human Rights Law Say About the Hijab Ban? (thewire.in) (Feb 14, 2022).

[ix] Hijab Ban Judgment Summary (Karnataka HC), SUPREME COURT OBSERVER (Mar 15, 2022),

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