Supreme Court: The Hijab Ban controversy in the State of Karnataka is far from coming to an end as the bench of Hemant Gupta and Sudhanshu Dhulia, JJ delivers a split verdict and refers the matter to a larger bench.
The Controversy
The case revolves around a Government Order dated 5.2.2022, that imposed dress code for students of all schools and colleges of Karnataka “in the interests of unity, equality and public order”. The order was passed after it was brought to the education department’s notice that students in a few institutions have been carrying out their religious observances, which has become an obstacle to unity and uniformity in the schools and colleges.
The Government Order dated 5.2.2022 referred to some of the judgments of the Supreme Court and High Courts to come to the conclusion that the prohibition of a headscarf or a garment covering the head is not a violation of Article 25 of the Constitution.
To understand the controversy, it important to note the chronology of the events:
Aishat Shifa and Tehrina Begum were the two second year students of Government Pre-University College in Kundapura. They both follow Islam religion and wear hijab. On February 3, 2022, these girls were stopped at the gate of their college and were told that they will have to take off their hijab before entering the college. Since they refused to take off their hijab, they were denied entry in the college, by the college administration. Similar restriction was imposed on other school going girls in different parts in Karnataka.
On February 4, 2022, both made a representation before the Deputy Commissioner Udupi, praying that direction be given to the college authorities to let them enter their college and complete their studies.
The Government Order in question was passed on February 5, 2022.
Here’s what the Karnataka High Court held:
Justice Hemant Gupta’s opinion
The Government Order cannot be said to be contrary to the legitimate State goal of promoting literacy and education. Article 21A is not applicable as all the students are over 14 years of age. The students have a right to education under Article 21, but not of insisting on wearing something additional to the uniform, in a secular school, as a part of their religion.
“Secularism is applicable to all citizens, therefore, permitting one religious community to wear their religious symbols would be antithesis to secularism. Thus, the Government Order cannot be said to be against the ethic of secularism or to the objective of the Karnataka Education Act, 1983.”
If the students of one faith insist on a particular dress, there is no stopping for the others to carry their faiths and beliefs to the schools. It would not be conducive to the pious atmosphere of the school where the students seek admission for education. In fact, uniform fosters a sense of ‘equality’ amongst students- instills a sense of oneness, diminishes individual differences, helps focus on learning as students would not be bothered about their social status, improves discipline, fewer conflicts in school, promotes school spirit- generates a sense of belonging, pride, loyalty towards the school, relieves economic pressure on the parents, ensures equality before the educational institution, serves the need of a diverse community and promotes a positive sense of communal identity and does not lead to the growth of disparities of wealth and style. School is the time to learn and lay foundation for the future pursuits in life.
Justice Gupta was of the opinion that the Government Order does not take away any right of a student available to her under Article 21 of the Constitution, or contemplates any barter of fundamental rights. Stating that a student cannot claim the right to wear a headscarf to a secular school as a matter of right, he observed,
“The right to education under Article 21 continues to be available but it is the choice of the student to avail such right or not. The student is not expected to put a condition, that unless she is permitted to come to a secular school wearing a headscarf, she would not attend the school. The decision is of the student and not of school when the student opts not to adhere to the uniform rules.”
Justice Sudhanshu Dhulia’s Opinion
“All the Petitioners want is to wear a hijab! Is it too much to ask in a democracy? How is it against public order, morality or health? or even decency or against any other provision of Part III of the Constitution?”
By asking the girls to take off their hijab before they enter the school gates, is first an invasion on their privacy, then it is an attack on their dignity, and then ultimately it is a denial to them of secular education. These are clearly violative of Article 19(1)(a), Article 21 and Article 25(1) of the Constitution of India. Hence, there shall be no restriction on the wearing of hijab anywhere in schools and colleges in Karnataka.
In absence of any plausible reasons either in the Government Order dated 5 February 2022, or in the counter affidavit before the High Court, Justice Dhulia observed that,
“It does not appeal to my logic or reason as to how a girl child who is wearing a hijab in a classroom is a public order problem or even a law-and-order problem. To the contrary reasonable accommodation in this case would be a sign of a mature society which has learnt to live and adjust with its differences.”
Also, under the Constitutional scheme, wearing a hijab should be simply a matter of Choice. It may or may not be a matter of essential religious practice, but it still is, a matter of conscience, belief, and expression.
“If she wants to wear hijab, even inside her class room, she cannot be stopped, if it is worn as a matter of her choice, as it may be the only way her conservative family will permit her to go to school, and in those cases, her hijab is her ticket to education.”
He also observed that the unfortunate fallout of the hijab restriction would be that we would have denied education to a girl child. A girl child for whom it is still not easy to reach her school gate. Hence, the question this Court would put before itself is also whether we are making the life of a girl child any better by denying her education merely because she wears a hijab!
[Aishat Shifa v. State of Karnataka, 2022 SCC OnLine SC 1394, decided on 13.10.2022]
For appellants: Senior Advocates Mr. Sanjay Hegde, Mr. Devadutt Kamat, Mr. Rajeev Dhawan, Ms. Meenakshi Arora, Ms. Jayna Kothari, Mr. Salman Khurshid, Mr. A.M. Dar, Mr. Kapil Sibal, Mr. Colin Gonsalves, Mr. Aditya Sondhi, Mr. Yusuf Muchhala, Mr. Huzefa Ahmadi, Mr. Dushyant Dave, and Mr. Prashant Bhushan, Ms. Kirti Singh, Mr. Rishad Ahmed Chowdhury, Mr. Shoeb Alam, Mr. Rahmatullah Kotwal, Ms. Thulasi K. Raj, Mohd. Nizamuddin Pasha,
For State: Mr. Tushar Mehta, Solicitor General, Mr. K.M. Natraj, Additional Solicitor General, Mr. Prabhuling Navadgi, Advocate General for the State of Karnataka, Senior Advocates Mr. R. Venkataramani, Ms. V. Mohana, Mr. D.S. Naidu.