In Interim Order, Karnataka High Court Upholds Government Order Banning Hijab

By Raha Rafii

In December 2021, a dispute broke out at Government Pre-University College for Girls in the state of Karnataka, India, where six students demanded to wear the headscarf/ḥijāb on school grounds.[1] This action set off several protests and counter-protests over subsequent months in multiple districts, including students wearing saffron shawls to assert religious Hindu identity in protest of female students’ insistence of wearing ḥijāb with school uniforms.[2] School officials, as well as the Karnataka state government, eventually banned both headscarves and saffron shawls from being worn as violations of school uniform and dress code.[3] As a result, some Muslim students made several petitions to the High Court to overturn the ḥijāb ban, arguing that it impeded their education and their right to freedom of religion under India’s Constitution. On March 15, 2022, the Karnataka High Court ruled that wearing headscarves was not “essential” to Islam, quoting passages from the Qur’ān and other Muslim texts as proof that it was not an obligatory religious practice, and that the government had the right to prescribe uniforms for its students.[4] The Court reiterated some of its earlier statements from its Interim Order on February 14, 2022, banning the wearing of headscarves/ḥijāb in government schools.[5]

The Interim Order, which was issued by a full bench of judges on the High Court, heard several petitions by Senior Advocates Sanjay Hegde and Devadatt Kamat, arguing on behalf of Muslim students challenging a Government Order from May 2, 2022, issued under sections 7 and 133 of the Karnataka Education Act of 1983, which directed College Development Committees all over the State to prescribe a student uniform, which resulted in the banning of ḥijāb. Sr. Adv. Hegde argued that the 1983 act did not give jurisdiction for educational institutions to prescribe school uniforms or impose penalties for violation of the dress code, while Sr. Adv. Kamat went further to argue that the state government of Karnataka had no authority to mandate the College Development Committees to prescribe student uniforms. Sr. Adv. Kamat also argued that the Government Order to ban ḥijāb, based on the decisions of the Kerala, Madras, and Bombay High Courts, had “wrongly construed” wearing hijab as not being part of “essential religious practice.” Furthermore, he argued that headscarves, falling under the category of dress and attire, were protected as rights of speech and expression as well as being a matter of privacy for citizens.

The Advocate General, the legal advisor to the state, responded only to the issue of authority to prescribe school uniforms. He stated that the Government Order did not actually mandate school uniforms since individual institutions themselves determined the dress code, negating the petitioners’ claims.

The Court upheld the ban on wearing ḥijāb on several counts. It accepted the Advocate General’s observation that both protests against banning the ḥijāb and counterprotests insisting on wearing saffron shawls “disturb[ed] public peace and tranquility,” resulting in the closures of educational institutions and the prevention of students from timely and urgent access to education. The Court equated the wearing of ḥijāb as well as saffron shawls with public agitation; it thus not only upheld the ban but expanded it to the wearing of saffron shawls, religious flags “and the like.” Finally, while the Court affirmed India as a secular state maintaining the right to practice religion, it also asserted that such a right was not absolute in light of breaching public peace. It stated that the question of whether wearing ḥijāb was “part of essential religious practice in Islam” and protected constitutionally would need “deeper examination,” an issue that was subsequently taken up in the Karnataka High Court Order in March.

Notes:

[1] “How Karnataka hijab row unfolded, spread,” The Times of India (February 9, 2022), https://timesofindia.indiatimes.com/city/bengaluru/how-karnataka-hijab-row-unfolded-spread/articleshow/89443877.cms.

[2] “Hijab ban: Karnataka high court upholds government order on headscarves,” BBC (March 15, 2022), https://www.bbc.com/news/world-asia-india-60300009.  See also Johanna Deeksha, “Karnataka’s saffron scarf protests against the hijab aren’t new. A college in Koppa saw one in 2018,” Scroll.in (February 15, 2022), https://scroll.in/article/1017344/karnatakas-saffron-scarf-protests-against-the-hijab-arent-new-a-college-in-koppa-saw-one-in-2018.

[3] “India court upholds Karnataka state’s ban on hijab in class,” Al Jazeera (March 15, 2022), https://www.aljazeera.com/news/2022/3/15/india-court-upholds-karnataka-states-ban-on-hijab-in-class.

[4] “Karnataka High Court Order Restricting the Wearing of Headscarves in Colleges in the State in response to the Petitions Challenging the Ḥijāb Ban (Mar. 15, 2022),” SHARIAsource (April 19, 2022), https://beta.shariasource.com/documents/4452.

[5] “Karnataka High Court Interim Order Restricting the Wearing of Headscarves in Colleges in the State in response to the Petitions Challenging the Ḥijāb Ban (Feb. 14, 2022),” SHARIAsource (April 13, 2022), https://beta.shariasource.com/documents/4448.

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