“Their (female muslim students’) right to education, which is paramount, is being put on back burner,” lamented senior advocate Devdatt Kamat, in his rejoinder arguments in a case filed by Muslim girls, seeking protection of their right to wear hijab in educational institutions in Karnataka.
Kamat’s rejoinder, which included a plea to create an atmosphere which facilitates the right to education for all students, came on day 10 of the hearing, and only a day before the Karnataka High Court on Friday, 25 February, finished hearing a batch of petitions challenging the ban on hijabs on several educational campuses in the state.
The matter was heard by a three-judge bench of Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and JM Khazi.
In the eleven days of hearing, the petitioners, as well as the state government, presented a slew of arguments, leaving the court to deliberate over several interconnected issues, including:
Whether wearing hijab is an 'Essential Religious Practice' or not in Islam
Whether the State can interfere in such matters
Is the choice to wear a hijab protected under the right to freedom of expression and the right to privacy.
So, what do these issues boil down to? What were the key arguments made from both sides on these issues? And what are the options for what happens next?
'Hijab Case' Verdict Today: What Did Petitioners Argue? What Did State Say?
1. What is the Hijab Row?
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 hijab."
The students subsequently filed a writ petition in the Karnataka High Court, and also approached the National Human Rights Commission.
Meanwhile, triggered by the increasing resistance, Hindu students donned saffron scarves as a symbol of their opposition to the hijab, while the number of institutions that prohibited the latter continued to increase across Karnataka.
On 4 January, around 50 students of a state-run degree college in Chikmagalur District wore saffron-coloured scarves and raised slogans outside their educational institution. This led to both scarves and hijabs being banned from classrooms in the institute.
As resistance by Muslim students against what they saw as an oppressive ban on their religious attire spread in different corners of the state, the saffron-shawl protests were promoted with fierce intensity by Hindu right-wing groups.Expand2. The Interim Order
The Karnataka High Court, in an interim order dated 10 February, refused to allow Muslim girls to attend class wearing their headscarves until a final adjudication in the matter, after several Muslim girls (including one of the original girls from Udupi) filed petitions requesting protection of their rights.
"Pending consideration of all these petitions, we restrain all the students regardless of their religion or faith from wearing saffron shawls (Bhagwa), scarfs, hijab, religious flags or the like within the classroom, until further orders."
Karnataka High Court order dated 10 FebruaryThe judges said that “it is a matter of a few days only,” even as senior advocate Devdatt Kamat submitted that it would amount to a suspension of the right to practice one's religion under Article 25 of the Constitution.
The order did not specify a particular reason for denying interim relief to the Muslim students, merely noting that whether "wearing of hijab in the classroom is a part of essential religious practice of Islam in the light of constitutional guarantees," needs deeper examination.
Commenting on this interim order by the Karnataka High Court, Supreme Court advocate Rashmi Singh explained why this interim order was problematic:
“Tomorrow, the final judgment could be anything. But these 15-20 days, you have already suspended the fundamental rights, you have already given a judgment without hearing all the arguments out.”
Singh pointed out that the interim order is like “if a tenant approaches the court against an eviction, you tell him to stay on the street till you decide his case. “
The advocate said that the women, who have worn the hijab everywhere for 70 years, could have been permitted to wear it for another 20 days while awaiting the final order.
Expand3. What are the Petitioners Saying?
Challenging the government order, perhaps the key arguments made by the petitioners’ lawyers pertain to essential religious practice, freedom of conscience and hostile discrimination.
ESSENTIAL RELIGIOUS PRACTICE
Senior advocate Kamat had, on his part, pointed out that the Muslim girls are being compelled to give up what they perceive as an essential religious practice even when there is no threat to public order.
"The State is an outside authority, it cannot say that wearing a headscarf is essential practice or not. It has to be seen from the viewpoint of a believer," Kamat explained.
On the other hand, the state's advocate general Prabhuling Navadgi argued that the wearing of a hijab is not in fact an essential religious practice.
After taking the judges through the key judgments of the Supreme Court on this matter, including most recently in the Sabarimala case, the Advocate General culled out the following principles which had to be followed to determine whether any particular practice is an essential religious practice (ERP):
That practice has to be fundamental in nature for the religion.
If not followed, the religion would change.
Not every activity associated with religion can be characterised as an essential religious practice – when it comes to food or dress this has to be conclusively demonstrated to the court.
The practice in question should be something which has been part of the religion from the start, it should not be a subsequently developed practice.
The binding nature of the practice – is it optional or compulsory, and will a person face consequences for not following it.
According to the state of Karnataka, if these principles were applied to the wearing of hijabs, then it was clear that the practice was not an ERP, as, according to them, it was not expressly prescribed in the Quran, and the religion of Islam was not fundamentally affected by not practicing it.
Expand4. What Has the State Argued?
The key argument of the Karnataka government through advocate general Prabhuling Navadgi, as noted earlier, was that wearing hijabs was not an essential religious practice in Islam.
Quoting from the apex court judgment in Mohd Hanif Quareshi and Others vs The State Of Bihar to establish that "the very fact of an option seems to run counter to an obligatory duty,” Navadgi said:
"What is optional is not compulsory. What is not compulsory is not obligatory. What is not obligatory is not essential.”
Further, citing the judgment in the Sabarimala case, the advocate general had asked:
"In light of law laid down by the Supreme Court in the Sabarimala case, would it be possible to accept the wearing of hijab in light of constitutional morality and individual dignity?"
In the Sabarimala case, the constitution bench of the Supreme Court had ruled that all Hindu pilgrims of any gender could enter the temple, and held that "any exception placed on women because of biological differences violates the Constitution."
The advocate general also defended the government order dated 5 February, which said students had to follow prescribed uniforms and avoid wearing clothes which could disturb public order, saying this was within the powers prescribed under the Karnataka Education Act 1983 and that it was "totally innocuous."
Interestingly, when pressed by the bench, he did nonetheless accept the last portion of the government order which talked about clothes being in consonance with unity and equality and public law and order, could have been worded better:
"Here, the draftsman went a bit enthusiastic. What was meant was, in case no uniform is prescribed, please wear decent clothes. I agree it could have been worded better."
Navadgi had also said that the multiple paragraphs in the non-operative part of the order which claimed that hijabs were not an essential religious practice in Islam "could have been avoided."
The Advocate General went on to tell the Court that the state had not prescribed anything and the order gave complete autonomy to the institution to decide the uniform.
However, in a seeming contradiction to the same, on being asked what the state’s stand would be if individual institutions permitted Hijab, he said the government did have revisionary powers over any order by an educational institution or college development committee.
Expand5. Agency, Dignity and Modesty
While the high court heard detailed arguments on nearly all possible grounds for why hijab restrictions are illegal, many legal experts feel that certain arguments were not emphasised in enough detail.
One such argument which didn't receive enough attention, some feel, is on the right to agency and dignity.
Supreme Court advocate Rashmi Singh told The Quint that a hijab-ban robs women off their agency to decide what they should or should or should not wear.
“A 'reform' that forces a girl to dress in a particular manner is nothing but a tool of oppression. It also shows that according to the self-proclaimed reformers, women lack the intellect that is required to decide what they should and shouldn’t wear. This in turn points to the perception of women as inferior beings who need guidance even for basic things such as choice of clothes.“
Advocate Rashmi SinghFurther, Singh said that ordering a ban on hijab and thereby directing students to attend classes, while ill at ease, would amount to an attack on their dignity.
“Asking a woman to reduce her clothing is also a blatant affront to her modesty. This simply cannot be allowed in a democratic country,” Singh pointed out.
Singh also wanted to know what action had the court taken against hecklers or authorities that had asked even teachers to remove their hijab. The high court had subsequently clarified that the government order was not applicable to teachers.
However, the clarification came after visuals emerged of teachers being compelled to remove their hijab, before entering their place of work.
Meanwhile, Supreme Court lawyer Gautam Bhatia has, in an article for LiveLaw, criticised the test of ‘Essential Religious Practice’ as one that, by its very nature, is set up to negate individual agency. In his article, Bhatia wrote that it would be better if the argument took the following form:
“That dress and clothing are aspects of individual and often social expression (especially when it comes to community symbols), and therefore – regardless of whether the motivation to wear them is religious or otherwise – they are protected under the rights to free speech and privacy (as decisional autonomy), and the part of Article 25 that speaks of freedom of conscience.”
Expand6. What’s Are the Possible Outcomes in the Case?
The court had concluded hearing the batch of petitions, including those challenging the government's order, on 25 February. The three-judge bench has also granted liberty to all parties and intervenors to file their written submissions.
Following 11 days of hearing, the Karnataka High Court has now reserved its judgment in the case. But what can the court's verdict be? Three possible outcomes come to mind:
1) The court may hold that wearing hijab comes within the realm of Essential Religious Practice. In that case, the state or other authorities authorities will be disallowed from imposing any restriction on it. Hijab use will thereby be permitted, possibly along with the prescribed uniform in institutions which have them.
2) The court may declare that wearing-hijab is not an Essential Religious Practice, and thereby, refuse to quell the state's restrictions on hijab in schools and colleges.
3) The court may declare that wearing-hijab is not an Essential Religious Practice, but may still deem hijab as protected by some other rights such as under Article 19(1)(a) (freedom of expression) or the part of Article 25 that deals with freedom of conscience.
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)
Expand
What is the Hijab Row?
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 hijab."
The students subsequently filed a writ petition in the Karnataka High Court, and also approached the National Human Rights Commission.
Meanwhile, triggered by the increasing resistance, Hindu students donned saffron scarves as a symbol of their opposition to the hijab, while the number of institutions that prohibited the latter continued to increase across Karnataka.
On 4 January, around 50 students of a state-run degree college in Chikmagalur District wore saffron-coloured scarves and raised slogans outside their educational institution. This led to both scarves and hijabs being banned from classrooms in the institute.
As resistance by Muslim students against what they saw as an oppressive ban on their religious attire spread in different corners of the state, the saffron-shawl protests were promoted with fierce intensity by Hindu right-wing groups.
The Interim Order
The Karnataka High Court, in an interim order dated 10 February, refused to allow Muslim girls to attend class wearing their headscarves until a final adjudication in the matter, after several Muslim girls (including one of the original girls from Udupi) filed petitions requesting protection of their rights.
"Pending consideration of all these petitions, we restrain all the students regardless of their religion or faith from wearing saffron shawls (Bhagwa), scarfs, hijab, religious flags or the like within the classroom, until further orders."Karnataka High Court order dated 10 February
The judges said that “it is a matter of a few days only,” even as senior advocate Devdatt Kamat submitted that it would amount to a suspension of the right to practice one's religion under Article 25 of the Constitution.
The order did not specify a particular reason for denying interim relief to the Muslim students, merely noting that whether "wearing of hijab in the classroom is a part of essential religious practice of Islam in the light of constitutional guarantees," needs deeper examination.
Commenting on this interim order by the Karnataka High Court, Supreme Court advocate Rashmi Singh explained why this interim order was problematic:
“Tomorrow, the final judgment could be anything. But these 15-20 days, you have already suspended the fundamental rights, you have already given a judgment without hearing all the arguments out.”
Singh pointed out that the interim order is like “if a tenant approaches the court against an eviction, you tell him to stay on the street till you decide his case. “
The advocate said that the women, who have worn the hijab everywhere for 70 years, could have been permitted to wear it for another 20 days while awaiting the final order.
What are the Petitioners Saying?
Challenging the government order, perhaps the key arguments made by the petitioners’ lawyers pertain to essential religious practice, freedom of conscience and hostile discrimination.
ESSENTIAL RELIGIOUS PRACTICE
Senior advocate Kamat had, on his part, pointed out that the Muslim girls are being compelled to give up what they perceive as an essential religious practice even when there is no threat to public order.
"The State is an outside authority, it cannot say that wearing a headscarf is essential practice or not. It has to be seen from the viewpoint of a believer," Kamat explained.
On the other hand, the state's advocate general Prabhuling Navadgi argued that the wearing of a hijab is not in fact an essential religious practice.
After taking the judges through the key judgments of the Supreme Court on this matter, including most recently in the Sabarimala case, the Advocate General culled out the following principles which had to be followed to determine whether any particular practice is an essential religious practice (ERP):
That practice has to be fundamental in nature for the religion.
If not followed, the religion would change.
Not every activity associated with religion can be characterised as an essential religious practice – when it comes to food or dress this has to be conclusively demonstrated to the court.
The practice in question should be something which has been part of the religion from the start, it should not be a subsequently developed practice.
The binding nature of the practice – is it optional or compulsory, and will a person face consequences for not following it.
According to the state of Karnataka, if these principles were applied to the wearing of hijabs, then it was clear that the practice was not an ERP, as, according to them, it was not expressly prescribed in the Quran, and the religion of Islam was not fundamentally affected by not practicing it.
FREEDOM OF CONSCIENCE & CONSTITUTIONAL MORALITY
Meanwhile, senior advocate Yusuf Mucchala argued:
"When a right is claimed under Article 25(1) and 19(1)(a), what matters is the entertainment of a conscientious belief by an individual; it is not necessary to determine whether it is an integral part of the religion.”
Article 25(1): All persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
Article 19(1)(a): All citizens shall have the right to freedom of speech and expression
Mucchala noted that freedom of conscience protects individual beliefs and choices in the same way as an established religious belief. Therefore even without getting into the ERP question, if the girls held a conscientious belief that they should wear a hijab, this should be protected by their fundamental rights as long as there was no actual threat to public order.
Senior advocate Kamat, in his rejoinder, tried to counter the advocate general's reference to the Sabarimala and Navtej Johar judgments of the Supreme Court.
Navadgi had argued that these judgments emphasised that religious proscriptions that went against constitutional morality did not need to be protected. Since the hijab was actually an oppressive practice for women, restrictions on it were constitutionally valid.
Kamat argued that the judgments cited by the advocate general were, in fact, pro-choice and that constitutional morality is about ensuring an individual's choice and autonomy are respected.
'HOSTILE DISCRIMINATION'
The lawyers for the petitioners have also alleged hostile discrimination on the part of the state by “singling out hijabs” alone in the non-operative part of a government order issued on 5 February, as well as the implementation of rules on uniforms across the state.
"This is only because of her religion that the petitioner is being sent out of the classroom. A bindi-wearing girl is not. A bangle-wearing girl is not. A Christian wearing a cross is not. Why only these girls? This is a violation of Article 15."Senior advocate Ravivarma Kumar
On the face of it the Karnataka High Court's interim order appears quite neutral and unaffected by religious differences, stating:
"Pending consideration of all these petitions, we restrain all the students regardless of their religion or faith from wearing saffron shawls (Bhagwa), scarfs, hijab, religious flags or the like within the classroom, until further orders."
However, the ground reality may be different, with the state’s Primary and Secondary Education Minister BC Nagesh, himself, stating that the court order does not apply to turban use at all.
“The Constitution has given the right to people from the Sikh community to wear turbans,” said Nagesh, adding as per Deccan Herald, that the interim order is only applicable to the hijab, saffron stole and religious flags.
It may be of consequence to reiterate that saffron scarfs were donned by Karnataka college students largely in reaction to and as a form of protest against muslim girls wearing hijab. Thus, in most cases, seemingly not from the very beginning.
What Has the State Argued?
The key argument of the Karnataka government through advocate general Prabhuling Navadgi, as noted earlier, was that wearing hijabs was not an essential religious practice in Islam.
Quoting from the apex court judgment in Mohd Hanif Quareshi and Others vs The State Of Bihar to establish that "the very fact of an option seems to run counter to an obligatory duty,” Navadgi said:
"What is optional is not compulsory. What is not compulsory is not obligatory. What is not obligatory is not essential.”
Further, citing the judgment in the Sabarimala case, the advocate general had asked:
"In light of law laid down by the Supreme Court in the Sabarimala case, would it be possible to accept the wearing of hijab in light of constitutional morality and individual dignity?"
In the Sabarimala case, the constitution bench of the Supreme Court had ruled that all Hindu pilgrims of any gender could enter the temple, and held that "any exception placed on women because of biological differences violates the Constitution."
The advocate general also defended the government order dated 5 February, which said students had to follow prescribed uniforms and avoid wearing clothes which could disturb public order, saying this was within the powers prescribed under the Karnataka Education Act 1983 and that it was "totally innocuous."
Interestingly, when pressed by the bench, he did nonetheless accept the last portion of the government order which talked about clothes being in consonance with unity and equality and public law and order, could have been worded better:
"Here, the draftsman went a bit enthusiastic. What was meant was, in case no uniform is prescribed, please wear decent clothes. I agree it could have been worded better."
Navadgi had also said that the multiple paragraphs in the non-operative part of the order which claimed that hijabs were not an essential religious practice in Islam "could have been avoided."
The Advocate General went on to tell the Court that the state had not prescribed anything and the order gave complete autonomy to the institution to decide the uniform.
However, in a seeming contradiction to the same, on being asked what the state’s stand would be if individual institutions permitted Hijab, he said the government did have revisionary powers over any order by an educational institution or college development committee.
Agency, Dignity and Modesty
While the high court heard detailed arguments on nearly all possible grounds for why hijab restrictions are illegal, many legal experts feel that certain arguments were not emphasised in enough detail.
One such argument which didn't receive enough attention, some feel, is on the right to agency and dignity.
Supreme Court advocate Rashmi Singh told The Quint that a hijab-ban robs women off their agency to decide what they should or should or should not wear.
“A 'reform' that forces a girl to dress in a particular manner is nothing but a tool of oppression. It also shows that according to the self-proclaimed reformers, women lack the intellect that is required to decide what they should and shouldn’t wear. This in turn points to the perception of women as inferior beings who need guidance even for basic things such as choice of clothes.“Advocate Rashmi Singh
Further, Singh said that ordering a ban on hijab and thereby directing students to attend classes, while ill at ease, would amount to an attack on their dignity.
“Asking a woman to reduce her clothing is also a blatant affront to her modesty. This simply cannot be allowed in a democratic country,” Singh pointed out.
Singh also wanted to know what action had the court taken against hecklers or authorities that had asked even teachers to remove their hijab. The high court had subsequently clarified that the government order was not applicable to teachers.
However, the clarification came after visuals emerged of teachers being compelled to remove their hijab, before entering their place of work.
Meanwhile, Supreme Court lawyer Gautam Bhatia has, in an article for LiveLaw, criticised the test of ‘Essential Religious Practice’ as one that, by its very nature, is set up to negate individual agency. In his article, Bhatia wrote that it would be better if the argument took the following form:
“That dress and clothing are aspects of individual and often social expression (especially when it comes to community symbols), and therefore – regardless of whether the motivation to wear them is religious or otherwise – they are protected under the rights to free speech and privacy (as decisional autonomy), and the part of Article 25 that speaks of freedom of conscience.”
What’s Are the Possible Outcomes in the Case?
The court had concluded hearing the batch of petitions, including those challenging the government's order, on 25 February. The three-judge bench has also granted liberty to all parties and intervenors to file their written submissions.
Following 11 days of hearing, the Karnataka High Court has now reserved its judgment in the case. But what can the court's verdict be? Three possible outcomes come to mind:
1) The court may hold that wearing hijab comes within the realm of Essential Religious Practice. In that case, the state or other authorities authorities will be disallowed from imposing any restriction on it. Hijab use will thereby be permitted, possibly along with the prescribed uniform in institutions which have them.
2) The court may declare that wearing-hijab is not an Essential Religious Practice, and thereby, refuse to quell the state's restrictions on hijab in schools and colleges.
3) The court may declare that wearing-hijab is not an Essential Religious Practice, but may still deem hijab as protected by some other rights such as under Article 19(1)(a) (freedom of expression) or the part of Article 25 that deals with freedom of conscience.
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)