By Raha Rafii
On March 15, 2022, the Karnataka High Court[1] dismissed petitions against its Interim Order[2] upholding the Government Order[3] dated May 2, 2022 banning ḥijāb in government schools in the state of Karnataka, India. The Court dismissed a few petitions based on lack of sufficient evidence, while dismissing the arguments of the remaining petitions to uphold the ḥijāb ban.
The Court summarized and responded to the petitions brought before it, noting that the matter of whether ḥijāb could be worn as part of school uniform in government schools boiled down to one issue: whether wearing the ḥijāb/headscarf was “a part of essential religious practice in Islam.” The Court cited the case Acharya Jagdishwarananda Avadhuta and Ors. v. Commissioner of Police to define a religious practice as “essential” if removing the practice would change “the nature of the religion.”[4] It also cited the case Indian Young Lawyers Association v. State of Kerala to assert that a religious practice must pass the test of essentiality as determined by Indian courts, meaning that they must be in accordance with “constitutional values” of “dignity and equality.”[5] The Court held that religious freedom was not fundamentally absolute and had to be harmonized with the contextual conditions of the Constitution.[6]
The Court further concluded that wearing ḥijāb did not meet the standards of “essential” religious practice based on two arguments. The first argument stated that there was no specific injunction in the Qur’ān for wearing headscarves;[7] instead, the word ḥijāb entailed “visual, spatial, ethical, and moral” dimensions rather than a physical head covering,[8] and in practice, the wearing of a physical head-covering was one that was not mandatory but recommended at most.[9] The second argument, which relied on Fathima Thasneem v. State of Kerala, stated that since wearing a head-covering in all-girls’ schools was not “an obligatory overt act enjoined by Muslim religion,” banning head-coverings could not be considered interfering with the “essence of Muslim religion or Islam.”[10] It was thus a “cultural,” rather than a religious, practice. Having determined that the ḥijāb was not an essential religious practice, the Court consequently asserted that, as a cultural practice, it was not protected under Article 25 of the Constitution, which guaranteed the right to profess, practice, and propagate religion.[11]
In response to another petition claim, the Court held that wearing ḥijāb was not a matter of freedom of conscience, as petitioners did not provide material evidence that wearing a headscarf was “a means of conveying any thought or belief on their part or as a means of symbolic expression.”[12] Furthermore, the Court asserted that petitioners’ claims of freedom of conscience and freedom of religion involved two different domains of rights, which were “arguably” mutually exclusive.[13]
The Court also responded to the petition claim that the Government Order that had been issued under Section 133, along with Rule 11 of the 1995 Curricula Rules, only authorized government educational institutions to individually prescribe school uniform without mandating one itself. The Court stated that both the Order and the Rule intended “to give effect to constitutional secularism” and its ideals, which included “transcending” religious differences as written in Article 51A(e) of the Constitution.[14] The Court also implicitly included the wearing of ḥijāb as a practice “against the dignity of women” which had to be banned in the service of “nation building.”[15] To this effect, the Court made a point of citing B.R. Ambedkar, the jurist and social reformer whom it referred to as the Chief Architect of the Constitution, in denigrating gender segregation (purdah) and veiling.[16]
In relation to the ideals of secularism and transcending religious difference, the Court further interpreted Article 51A(e) to mean that the state government was authorized to prescribe the curricula to inculcate “the sense of this duty.”[17] The Court also responded to the petition claim that enforcing school dress code was a “police power” that was currently outside of the jurisdiction of schools, the government, and the College Betterment (Development) Committee, which prescribes school uniforms and dress codes.
After stating that petitioners did not provide sufficient evidence through court rulings or opinions that enforcing dress codes was in fact a police power, the Court asserted that the power of mandating school uniforms was “inherent in the concept of school education itself,”[18] citing ancient Indian tradition and 13th-century England to demonstrate its near-universality.[19] Interpreting the word “curricula” in section 7(2) of the Karnataka Education Act of 1983 to include the power to prescribe school uniforms, the Court subsequently interpreted the 1983 Act alongside “international conventions to which India is a party” to assert that the duty on the State to provide education included the power to prescribe uniforms;[20] the Government Order was thus upheld.[21] The Court added that, as “qualified public places,” schools “by their very nature” repel the assertion of individual rights. Furthermore, school dress codes banning the ḥijāb cannot be considered arbitrary or discriminatory restrictions if they are applied equally to all students regardless of “religion, language, gender and the like,”[22] since school dress codes also can ban saffron shawls (bhagwa) because of their “visible religious overtones.”[23] The Court thus dismissed petitioners’ claims of wearing ḥijāb as freedom of speech, freedom of expression, and the protected right to privacy as being subject to “reasonable restrictions.”[24]
The Court also responded to petitioners’ arguments that the notion that the wearing of ḥijāb violates “public order” had no grounding, since its legal counterpart, causing public disorder, should have resulted in the state government taking action against those responsible for disruption instead of banning the ḥijāb. Karnataka authorities had earlier closed schools and colleges to prevent both protests and counterprotests, and imposed restrictions on public gatherings in certain areas.[25] The Court stated that the term “public order” in a Government Order could not be construed to have the same meaning as in the Constitution or Statues,[26] and therefore the State Government was neither obligated to revoke the Government Order nor take action against disrupters.
Finally, the Court dismissed petitioners’ claims that banning ḥijāb was gender-based discrimination since banning the ḥijāb would effectively bar Muslim female students who wear headscarves from attending school and receiving a secondary-school education. The claim noted that the order would be in violation of Article 15 of the Constitution and various international treaties, including the Convention of Eradication of All Forms of Discrimination Against Women and the United Nations Convention on Rights of the Child, as well as violating the right to education. The Court responded that banning the wearing of ḥijāb with school uniforms, in line with India’s constitutional values of equal access to public participation as well as “positive secularism,” was a step towards Muslim women’s emancipation in the spirit of international treaties. The Court succinctly concluded that the ban did not rob Muslim women of their autonomy or right to education “inasmuch as they can wear any apparel of their choice outside the classroom.”[27] Meanwhile, several Muslim female students skipped classes and exams while the Interim Order was being heard, while other Muslim students threatened to drop out or opt for correspondence courses if the High Court upheld the ban.[28] The case may be appealed to India’s Supreme Court.[29]
Notes:
[1] “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.
[2] Raha Rafii, “In Interim Order, Karnataka High Court Upholds Government Order Banning Hijab,” Islamic Law Blog (May 12, 2022), https://islamiclaw.blog/2022/05/12/in-interim-order-karnataka-high-court-upholds-government-order-banning-hijab.
[3] Ibid.
[4] “Karnataka High Court Order Restricting the Wearing of Headscarves,” p. 54.
[5] Ibid, 55, 57.
[6] Ibid, 51, 99.
[7] Ibid, 31, 62.
[8] Ibid, 64-65.
[9] Ibid, 65.
[10] Ibid, 77.
[11] Ibid, 44.
[12] Ibid, 81.
[13] Ibid.
[14] Ibid, 33, 42.
[15] Ibid, 33, 35.
[16] Ibid, 123.
[17] Ibid, 43.
[18] Ibid, 33.
[19] Ibid, 90.
[20] Ibid, 91-92.
[21] Ibid, 115.
[22] Ibid, 100.
[23] Ibid, 117.
[24] Ibid, 103.
[25] “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.
[26] “Karnataka High Court Order Restricting the Wearing of Headscarves,” 118.
[27] Ibid, 124.
[28] “Hijab ban: Karnataka high court upholds government order on headscarves,” BBC (March 15, 2022), https://www.bbc.com/news/world-asia-india-60300009; Krishna N. Das, “India court upholds state hijab ban in schools, could set national precedent,” Reuters (March 15, 2022), https://www.reuters.com/world/india/india-court-upholds-karnataka-states-ban-hijab-class-2022-03-15/.
[29] “Hijab ban: Karnataka high court upholds government order on headscarves”; Das, “India court upholds state hijab ban.”
(Suggested Bluebook citation: Raha Rafii, Karnataka High Court Order Upholds Ḥijāb Ban in Government Schools, Islamic Law Blog (May 19, 2022), https://islamiclaw.blog/2022/05/19/karnataka-high-court-order-upholds-%E1%B8%A5ijab-ban-in-government-schools/)
(Suggested Chicago citation: Raha Rafii, “Karnataka High Court Order Upholds Ḥijāb Ban in Government Schools” Islamic Law Blog, May 19, 2022, https://islamiclaw.blog/2022/05/19/karnataka-high-court-order-upholds-%E1%B8%A5ijab-ban-in-government-schools/)