Hijab Hearing in SC Soon: What are the Issues Apex Court Will Have to Examine?

What have the petitioners contended and what are the key issues the Supreme Court is expected to examine?

In March this year the Karnataka High Court upheld the state government's ban on Muslim students wearing Hijab in schools and colleges (packaged as a general rule on following uniforms without wearing religious garb).

The girls had protested the Hijab ban, first imposed by individual institutions and then by a government order, stating that it was a component of their essential religious practice. They also stated their freedom to dress that way was constitutionally validated as freedom of conscience and such bans on their religious attire was hostile discrimination.

"The State is an outside authority, it cannot say that wearing a headscarf is an essential practice or not. It has to be seen from the viewpoint of a believer," senior advocate Devdatt Kamat had explained.

The high court, however, decided it was "of the considered opinion that wearing of hijab by Muslim women does not form a part of essential religious practice in Islamic faith..."

"The prescription of school uniform is only a reasonable restriction that is constitutionally permissible which the students cannot object to," they said.

Immediately afterwards, a series of petitions were filed in the Supreme Court challenging the Karnataka High Court order, but the apex court decided it did not need to hear them on an urgent basis.

A bench headed by Chief Justice of India NV Ramana did, although, say on 13 July: “It will be listed sometime next week before an appropriate bench.”

So as we gear up for an apex court hearing in the matter, here's revisiting what the Hijab row was all about, what the Karnataka High Court said, what the petitioners have argued this time and what are the key issues the apex court is expected to examine.

How the Case Unfolded

In December 2021, six hijab-clad Muslim students belonging to Udupi's Government Pre-University College for Girls were barred from attending classes. The institute's purported reason: "No religious activity will be allowed on campus."

The girls were marked absent for at least three weeks before they protested the ban on 31 December, saying "though it is our constitutional right, they are still not allowing us to go in the class because we are wearing the hijab."

The Karnataka government also passed an order on 5 February, stating that students would have to wear uniforms and that there was no case made out for its invalidation.

Meanwhile, as resistance by Muslim students against what they saw as an oppressive ban on their religious attire spread in different corners of the state, Hindu right-wing students students donned saffron scarves as a symbol of their opposition to the hijab.

The Muslim students went on to file a writ petition in the Karnataka High Court, but their petition was subsequently, on 15 March, dismissed by a three-judge bench.

The Karnataka High Court's Stated Reasons

Broadly, the Karnataka High Court made the following observations while dismissing the batch of petitions by female Muslim students, seeking protection of their right to wear hijab in educational institutions in the state:

• “There is sufficient intrinsic material within the scripture itself to support the view that wearing hijab has been only recommendatory”

• Petitioners “have not averred anything as to how they associate wearing hijab with their conscience, as an overt act”

• “It can hardly be argued that hijab being a matter of attire, can be justifiably treated as fundamental to Islamic faith”

• Schools are ‘qualified public places’ and such “‘qualified spaces’ by their very nature repel the assertion of individual rights to the detriment of their general discipline and decorum”. For example: “the rights of an under – trial detenue qualitatively and quantitatively are inferior to those of a free citizen. Similarly, the rights of a serving convict are inferior to those of an under – trial detenue”

• Even the substantive rights themselves metamorphose into a kind of derivative rights

• "The aim of the regulation is to create a ‘safe space’ where such divisive lines should have no place and the ideals of egalitarianism should be readily apparent to all students alike”

Challenges to the Karnataka High Court Order: Petitions in the Supreme Court

Media reports suggest that a flurry of petitions have been filed in the top court challenging the Karnataka High Court order. These include, petitions by All India Muslim Personal Law Board and two Muslim women, an Islamic-clerics organisation, a 66-year-old social activist who wears a Hijab herself, and by two 19-year-old female residents of Karnataka.

These petitioners have broadly submitted that the Hijab Ban curtails Muslim women's fundamental rights to freedom of expression, freedom of conscience, liberty and privacy. They also point at that obvious unfairness of the choice between education and religious attire that hijab-practicing Muslim girls are being compelled to face in Karnataka.

But let's delve into what they have said in some detail.

The All India Muslim Personal Law Board and two Muslim Women, in their petition, point out that the petitioners had sought before the High Court that they be allowed to wear a headscarf of “the same colour of the uniform so that they may remain consistent with their fundamental right of conscience and expression”. Further, according to The Indian Express, they contend:

• Upholding the ban “deprives the constitutional rights of Muslim girls to practice Hijab along with the school uniform”

• It curtails the religious freedom and constitutional rights of Muslim women

• “The ground reality is that the petitioners are compelled to remove their hijab to avail the right of education, at the cost of self-respect and dignity”

• The discussions in the High Court on “diverse constitutional principles have resulted into conceptual overlapping leading to indirect discrimination”

• The High Court “laid too much emphasis on propositions” which leads to “discrimination, exclusion and overall deprivation of a class from the mainstream public education system” and “seriously encroaches upon an individual’s sacrosanct religious belief”

Islamic-clerics organisation "Samastha Kerala Jem-iyyathul Ulama”, in their Special Leave Petition in the Supreme Court, reportedly argues that the High Court verdict is based on an erroneous interpretation of the Quran and the Hadiths. According to LiveLaw, they contend:

• “Covering head and neck of woman in the presence of male outside her immediate family is the express dictum of Qur'anic verses and included in teachings of (Prophet) Muhammed”

• “It is not the hijab but the purpose behind it, i.e. properly covering head and neck, which is essential part of Islamic tenets”

• “As per the law settled by the Supreme Court in catena of Judgments, for a religious practice to pass the 'essentiality test,' it is not necessary that there must be a penalty or penance attached with it” and thus, the High Court erred in considering hijab to be a non-mandatory practice because there is no penalty prescribed for those not following it

The 66-year-old social activist, in her petition, reportedly submitted that neither was she given an opportunity to be heard by the Karnataka High Court, nor were her written submissions considered or referred to anywhere. Further, as reported by LiveLaw, she contends:

• Article 25 is subject only 'to public order, morality and health and to other provisions of this part' and the removal of the right to wear Hijab, does not fall within any other of the three categories

• The emphasis in Article 25 is on belief and so it should be considered from the point of view of a believer’s sincere belief, and only when the belief appears in conflict with with public order, morality or health that the test of essential religious practice would apply

• "In the present case, the teenage girls covering themselves modestly while going to receive education pose no threat to public order”

• The burden of proof lay upon the State to establish that there is no violation of Articles 19 (freedom of expression) and 21 (right to liberty) in their order

• The onus is on the State to demonstrate that the curb on Hijab was was necessary in public interest and justifiable under Articles 19 and 21

The two nineteen-year-old female residents of Karnataka, in their petition filed via Supreme Court Advocate Anas Tanwir, contend that wearing a Hijab comes under the ambit of right to privacy under Article 21 of the Constitution of India. Further, they submit:

• Freedom of conscience forms a part of the right to privacy (as pointed out in KS Puttaswamy v Union of India)

• The High Court has erred in creating a dichotomy between freedom of religion and freedom of conscience

• Article 19 (1) (a) provides a guaranteed right to freedom of speech and expression, which as pointed out in Navtej Singh Johar v Union of India, would include the freedom to lawfully express one’s identity in the manner of their liking

Liberty, Privacy, Expression & Equality: Issues Before the Supreme Court

As, and when, the Supreme Court finally looks into the Hijab issue, they will naturally have to find answers to several key legal questions raised in the torrent of petitions.

The Karnataka High Court had, in its order, observed that the protection guaranteed under Article 25 of the Constitution is only for those rituals and observances, which are essential or integral to a religion.

Thus among other things, the court will naturally have to examine whether the Karnataka High Court’s application of the test of 'Essential Religious Practice' in this matter was accurate, and whether or not the petitioners are entitled to enjoy protection guaranteed by Article 25 of the Constitution.

Here the petitioners’ arguments that Article 25 is subject only to public order, morality and health may be of consequence. If the Supreme Court holds that donning of Hijab by school and college-going girls is not injurious to any of the above three, then there may be a greater likelihood for the court to reaffirm protection under Article 25 to the applicants.

Likewise, if the Supreme Court agrees with the petitioners’ submission that Hijab, is in fact, an Essential Religious Practice in Islam, and that “belief” is of consequence under Article 25, then too the court will have to overrule the High Court order.

The court will also have to consider the contention that Hijab-restrictions are violative of Muslim women’s rights to privacy and freedom of conscience, in light of the Putaswamy judgment.

Further, they will have to examine whether or not denying a woman the right to dress as she deems appropriate is an infringement of her right to liberty, as well as freedom of expression. Neither of these issues was addressed in any detail by the Karnataka High Court, which was a key ground for criticising it.

Besides the above-mentioned points of contention, the top court of the country is expected to delve into the possibility of the Karnataka government order (effectively, the Hijab-ban) being inherently discriminatory on grounds of religion.

This is because Article 15(1) of the Constitution of India prohibits religious discrimination by the State and Article 14 provides for equality before law to all.

Further, as pointed out in this article, Article 15 jurisprudence “holds out a promise that no Indian citizen will be heckled or harassed for espousing ideas or holding beliefs that are different from the majority”.

But despite there being clear evidence of heckling and harassment of hijab-clad girls by an unruly mob in Karnataka, the court refused to rule that such heckling is a blatant transgression of Article 15.

The High Court, however, in their order did say:

“The way, hijab imbroglio unfolded gives scope for the argument that some ‘unseen hands’ are at work to engineer social unrest and disharmony."

The above-remark in itself is alarming as it may prove to have a chilling effect on those who approach courts for a re-affirmation of what they view as their fundamental, legal and constitutional rights.

It is unclear, whether the top court will comment on the use of such language and the casting of such far-reaching aspersions by a High Court in a judicial pronouncement, but this may still be a good time for them to reiterate what they had said in 1963 in The State Of Uttar Pradesh vs Mohammad Naim:

“…judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve.”

They should also perhaps look into whether the Karnataka High Court made a fair comparison, in illustrating their view about how it is acceptable to prohibit hijab-practice in “qualified public spaces” like schools with the example of rights of an under–trial detenue being “qualitatively and quantitatively” inferior to those of a free citizen.

This is because students are normally not under any trial and a school is neither a police station nor a jail. Further, even though, a school is expected to be a place of discipline, a student still is, in every way, even in school, a free citizen of the country.

The source for this doctrine of 'qualified public spaces' has not been explained in the High Court's judgment, and its scope for creation of new restrictions on fundamental rights was not explained either, which puts it on extremely weak legal footing.