Opinion: To ask if hijab is an essential religious practice is to ask the wrong question

On October 13, the Supreme Court delivered a split verdict in the Karnataka hijab case (Aishat Shifa vs State of Karnataka). While Justice Hemant Gupta upheld the Karnataka High Court

judgement backing the ban on the hijab in educational institutions, Justice Sudhanshu Dhulia penned a dissenting judgement. This split verdict means that the matter must now be placed before

a larger bench by the Chief Justice.

Justice Gupta’s opinion hinges on the importance of the uniform and the need to “ensure uniformity while imparting education” in order to “encourage a secular environment in schools.”

However, unlike the Karnataka High Court, at no point does he deny that the right to wear the hijab is a fundamental one. However, he calls it a reasonable restriction by the state, since

there cannot be a single addition or deduction to the uniform. It arrives at the paradoxical conclusion that the government order “promotes an equal environment where such fraternal values

can be imbibed and nurtured without any hindrance.”

The opinion of Justice Gupta fails to substantially engage with the case of the petitioners that their right to dignity, privacy and equality stands impaired by the arbitrary ban. The many

failures of Justice Gupta’s opinion is thrown into stark relief by Justice Dhulia’s opinion, grounded firmly in legal reasoning and judicial precedents, and imbued with a sense of

compassion.

Justice Dhulia’s opinion, at its heart, recognises that this is not an abstract argument, but rather a judgment which will have real life implications for young Muslim women. He does so most

poignantly by referencing the incident in which Aishat Shifa and Tehrina Begum, students of the Government Pre University College in Kundapura, were stopped from entering their college one

fine day, because they wore hijabs. The Government produced an ex post facto justification for this illegal action by passing a government order that allowed the prohibition on wearing the

hijab on the grounds that it was not a part of the uniform, and wearing it was not “in the interest of unity, equality and public order.”

Justice Dhulia foregrounds the lack of any rationale underlying the state action by pointing out how neither Aishat Shifa nor Tehrina Begum had in the past “faced any objection from anyone,

including the college administration, and their wearing of hijab inside their classroom was never an issue.”

Justice Dhulia’s judgement is imbued with a constitutional concern for female students’ right to equal access to education. He notes that the “fallout of the enforcement of hijab ban in

schools in Karnataka” is that “some of the girl students have not been able to appear for their Board examinations, and many others were forced to seek transfer to other schools, most likely

madrasas, where they may not get the same standard of education. This is for a girl child, for whom it was never easy, in the first place, to reach her school gate.”

To ask whether the hijab is an essential practice of religion and whether it is a right protected under Article 25, is to ask the wrong question. In his understanding, what constitutes an

“essential practice of religion” only becomes relevant when “the rituals and practices of a denomination or a sect of a particular religion sought protection against State intervention” or

when “an individual right was asserted against a religious practice’. The case of the right to wear a hijab was, by contrast, a case of an individual right to freedom of religion and

conscience under Article 25, with an interplay with the freedom of expression guaranteed under Article 19(1)(a).

Justice Dhulia cuts through the verbiage on whether the hijab is an essential practice of Islam to come to the simple conclusion, “If the belief is sincere, and it harms no one else, there

can be no justifiable reasons for banning hijab in a classroom.”

Justice Dhulia cites the judicial  precedent in Bijoe Emmanuel vs State of Kerala, in which three children belonging to the Jehovah's Witness faith were expelled from their school for not

singing the national anthem. The children had refused to sing the anthem, even though they stood respectfully when the anthem was being played. The Supreme Court had found that the children

did not sing the anthem as they believed that “their faith forbids them to sing for anyone but Jehovah.”

This right to exercise one's conscience is protected under Article 25. Justice Dhulia concludes “the girls before us today face the same predicament as the Jehovah’s Witnesses as they too

wear the hijab as an article of their faith.”

Justice Dhulia also draws from comparative jurisprudence from both the United States of America and South Africa to buttress his conclusions. In West Virginia State Board of Education vs

Barnette, the US Supreme Court had grappled with the question as to whether a school board can prescribe a compulsory flag salute by the students. Justice Jackson had then observed, “no

official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”

The South African Constitutional Court decision referenced by Justice Dhulia concerned a question of whether a Tamil girl could be prohibited from wearing a nose ring, which is part of her

culture/religion, to school. The Court, recognising the girl’s right to wear the nose ring to school, observed, “religious and cultural practices can be equally important to a persons’

identity. What is relevant is not whether a practice is characterised as religious or cultural, but its meaning to the person involved.”

Justice Dhulia is deeply concerned about the state’s obligation to ensure the right to education and caustically observes that the question that the School Administration and the state must

answer in the present case is, “what is more important to them - education of a girl child or enforcement of a dress code.” He notes,”wearing a hijab should be simply a matter of choice” and

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.”

Getting back to the facts with which he began, Justice Dhulia concludes, “Asking the girls to take off their hijab before they enter the school gates is, first, an invasion of their privacy,

then, an attack on their dignity, and ultimately, a denial of secular education. These are clearly violative of Article 19(1)(a), Article 21 and Article 25(1) of the Constitution of India.”

One hopes that Justice Dhulia’s opinion becomes much like the dissent of Justice Khanna in ADM Jabalpur vs Shivikant Shukla, where, “the intelligence of a future day” and the error of the

Karnataka High Court is swiftly corrected by the larger bench of the Supreme Court.

Arvind Narrain is a Bengaluru-based lawyer and writer, and is the author of ‘India’s Undeclared Emergency: Constitutionalism and the Politics of Resistance’.

Mohammed Afeef is a Bengaluru-based advocate practising in the Karnataka High Court.