In a bizarre twist to the ongoing hijab controversy, the Supreme Court bench hearing a batch of petitions challenging the Karnataka High Court’s judgement which upheld the ban on wearing hijab by Muslim girl students in some schools and colleges in the state, has posed a rather strange question.
When Senior Advocate Devadatt Kamat, who was appearing for the Petitioners, submitted that the right to freedom of expression under Article 19 of the Constitution includes dress, Justice Hemant Gupta, reportedly responded by asking, “You can’t take it to illogical ends. Right to dress will include right to undress also?”
The matter is being heard by the bench comprising Justices Hemant Gupta and Sudhanshu Dhulia. Arguments and detailed submissions have been made before the court with respect to the fundamental rights of the students, scope of right to dress covered under Article 19 (Freedom of Expression), students of other faiths wearing religious symbols, India’s positive secularism practice and more.
On the request of Advocate Ejaz Maqbool to compile all the petitions into one matter, the bench agreed and suggested that the same could be completed in a day or two. The following arguments were made on September 7 and 8.
Argument-1: Essential religious practice
Senior Advocate Rajeev Dhawan argued that this was a constitutional issue and should be referred to a constitution bench as per Article 145(3) of the Indian Constitution. He stated that the issue involved a question as to whether women should yield to the dress code or the government and whether wearing a headscarf was an ‘essential religious practice’.
But LiveLaw reports that as per Justice Gupta, wearing of the scarf may or may not be an essential practice but the question whether the government could regulate the dress code remained. As Senior Advocate Dhawan brought to the Court’s notice about the fact that even Supreme Court judges wear tilak or pagdis to the Court, Justice Gupta reportedly remarked that ‘Pagdi’ was a non-religious item and would be worn in royal states. LiveLaw quoted him as saying, “My grandfather used to wear it while practicing law. Don’t equate it with religion…Our Preamble says ours is a secular country. In a secular country can you say that a religious clothing has to be worn in a government run institution? This can be an argument.”
Senior Advocate Dhawan further brought to court’s notice a suggestion made earlier about the scarf of the same colour of uniform could be worn.
Argument-2: Regulation of the Dress Code
Senior Advocate Sanjay Hegde argued that the Court must decide on the narrow point of whether the State Government had the power under the Karnataka Education Act to prescribe the uniform. He also asked, “Can the education of women be made contingent on not wearing a particular dress? Can you tell a girl, I’m sorry using a wrong phrase, a grown up woman, that you will have no control over your own concept of modesty and say you cannot wear a chunni?”
But according to LiveLaw, Justice Gupta responded by asking, “I remember the news- a lady advocate came in jeans and it was objected to saying you can’t wear jeans. But technically can the woman say you can’t bar me for wearing jeans… If you go to a Golf Course, there is a dress code. Can you say I can wear the dress I like there? In some restaurants, you have a formal dress code, in some you have a casual dress code.”
However, Senior Advocate Hegde stated that the present case involved the access to education being conditional to a vulnerable section of the society. He stated that it needs to be seen whether the State had the power to prescribe uniform as per the Karnataka Education Act. According to Justice Gupta, if there was no specific power, Article 161 would be applicable.
Senior Advocate Hegde then proceeded to discuss Section 39 of the Karnataka Education Act which prohibits any local authority or the Governing Council of any private educational institution from denying admission to any citizen on ground of religion, race, caste, language or any of them or; directly or indirectly encouraging any propaganda or practice wounding the religious feelings of any class of citizens of India or insulting religion or the religious belief of that class in the educational institution. He further went on talk about Section 133 of the Act which states that powers of State to give direction are subject to other provisions of the Act and the rule making power.
He brought to the Court’s attention that as per the provisions of the Act, educational institutions were required to inform parents about change in uniform at least one year in advance and that any uniform prescribed could not be changed for 5 years. Also, the government prescribed curriculum did not include power to prescribe uniform.
Therefore, he argued that government could not make rules on the dress code and the government order stating that a person cannot wear a uniform showing their religion created a substantial disadvantage to Muslim women. He submitted that wearing an additional item on the uniform would not be in violation of the uniform.
When Justice Dhulia reportedly remarked that strictly speaking hijab might not be a religious practice, Senior Advocate Hegde argued that scarf was already a part of uniform as a chunni was allowed. However, Justice Dhulia stated that chunni was different and could not be compared to hijab as it was worn on shoulders.
Argument 3: Discipline in School
Additional Solicitor General, KM Nataraj appearing for the State of Karnataka stated that the issued only pertained to the disciple in school, in response to which Justice Gupta reportedly asked, “How is the discipline of school violated if hijab is worn?”
Advocate General of Karnataka Prabhuling Navadgi explained how the Government Order had been issued after a situation of unrest arose. He reportedly stated, “As per Rule 11, uniforms are prescribed by the institutions. We directed institutions to prescribe uniforms. Some of the institutions prohibited hijab. Those resolutions have not been challenged.” He further clarified that the government order (GO) did not violate the rights of the students, as the State was not saying don’t wear hijab or wear hijab. “We only say follow the uniform prescribed. Once the students realized that institutions prohibited hijab invoking Rule 11, they elevated their argument that our rights under Article 25 are violated. The Govt Order is not very happily worded, but the purport of the order is to follow the prescribed uniform,” he said.
The State informed the bench that there is no government interference in the management of the minority institutions including government colleges where the decision-making power has been left to the College Development Council.
Argument-4: Freedom of Expression under Article 19 includes Dress
Senior Advocate Kamat submitted that the right to freedom of expression under Article 19 of the Constitution includes dress. He reportedly stated, “By actually saying if you come in school wearing a hijab we will not allow you, State violates Article 19… The GO (Government Order) is giving petitioners a Hobson’s choice, forcing them to choose between their identity and dignity and right to education.”
Justice Gupta reportedly remarked, “You can’t take it to illogical ends. Right to dress will include right to undress also?”
Kamat responded, “Nobody is undressing in school. Question is wearing of this additional dress as part of Article 19, can it be restricted?”
Further discussing about the reasonable restrictions under Article 19 (2) relating to public order, morality, state interest, he reportedly asked, “Advocate General conceded that the GO is not based on public order… Then (is it on the) ground of morality? If I wear a headscarf, whose morality is offended? Whether the wearing of headscarf matching the colour of uniform is offending anyone else’s fundamental rights or legitimate state interest so as to warrant the State issued the GO?”
Argument-5: Students’ Fundamental Rights
Speaking about student’s fundamental rights under Article 19, 21 and 25, Kamat asked if students should surrender their rights as a pre-condition to access education.
He cited the case of Bijoe Emmanual v. state of Kerala where students were expelled from school for not singing the national anthem due to their faith and the Court had observed that personal views and reactions regarding a particular religious practice are irrelevant if the belief is held genuinely & conscientiously as part of religion.
However, Justice Dhulia dismissed this case being applicable to the present case stating, “In that case, judgment was by Justice Chinnappa Reddy, it was held that there was no insult to national anthem, as the students stood up. Then it touched upon tolerance. It is on a different case.”
Argument-6: Principle of Reasonable Accommodation
Kamat argued that a headscarf is not a burqa or hijab and asked if the petitioner being present in court wearing hijab is offending anyone. He argued that how can the headscarf of the same uniform colour cause any kind of indiscipline.
He pointed out how Kendriya Vidyalas running under the Central Government allowed wearing hijab. He submitted that as per their circular, head scarf with matching colour of uniform for girls is allowed. He reportedly stated, “It makes a reasonable accommodation for Muslim girls to wear head scarf…This was placed before the High Court. But High Court said Central Government is different from State Govt. And this practice (in KVs) is in vogue even today.”
Argument-7: Students of other religions also wear religious symbols
In order to emphasise on reasonable accommodation, Kamat pointed out how the Government Order by excluding Hijab from Article 25 targets one community while students from other religions are allowed to wear religious symbols to schools such as Rudraksha, Cross, Naman.
However, Justice Gupta reportedly said, “Your reading of GO may not be correct, because it is only one community which wants to come in religious dress. Rudraksh or Cross is different. They are worn inside dress, not visible to others. There is no violation of discipline.”
Kamat continued to argue that the question is about reasonable accommodation and not about whether it is visible or not.
Argument-8: International precedents
Kamat relied on an international judgment of the Constitutional Court of South Africa, in KwaZulu-Natal and Others v. Pillay where a south Indian girl was allowed to wear a nose ring to school as part of her tradition. The State held that asking the girl to remove nose ring even for a short period will send out the message that she and her religion were not welcome.
Justice Gupta dismissed a nose pin to be a religious symbol similar to women wearing earrings which is also not a religious practice.
Kamat argued that it was a religious practice as wearing ‘Bindi’ and ‘nose ring’ has religious significance while performing certain rituals and are worn by women to develop good virtue and also believed to bring prosperity. Kamat then went on to cite a 2015 US Supreme Court decision which allowed head scarf in employment and a Canada judgment allowing wearing of kara in school for Sikhs.
However, Justice Gupta dismissed these precedents stating, “All other countries have a uniform law for its citizens. How can you compare USA, South Africa and Canada with India? We are a conservative society. Their judgment is based on their society, their culture, we can’t totally follow.”
Continuing his argument, Senior Advocate Kamat stated, “Your lordships were right, South Africa is much more diverse, and the scope of protection is wider. Justice Dhulia had pointed out decisions in Continental Courts, it was one judgment in Austria…there was head scarf ban targeted at one community which was held unconstitutional… Students belonging to Islamic faith said it was part of their decision. The judgement stated – Selective ban which forbids Islamic girls from wearing headscarf may have adverse effect on the inclusion of female students concerned and making access to education more difficult for Muslim girls and marginalizes them.”
Argument-9: India’s practice of ‘Positive Secularism’
Contrary to France and Turkey, where display of religion is offensive, he stated that India practices positive secularism. He stated, “Secularism has a positive meaning… Secularism does not mean that students of only one faith will not display their religion.”
He cited the Supreme Court judgement in the case of Aruna Roy v. Union of India where the Court held that all religions have to be treated with equal respect and that there has to be no discrimination on the ground of religion. He even pointed out how a proposal seeking to prohibit display of religion in public had been rejected by the Constituent Assembly.
Argument-10: High Court judgment is flawed
In respect of the Karnataka High Court judgement judgment upholding hijab ban in schools/colleges, Advocate Kamat reportedly argued, “High Court said forcing a girl to wear hijab will militate against Article 14. Nobody is forcing a girl to wear a hijab. The question is if a girl is wearing a hijab out of choice, can it be prohibited. With due respect, it is her choice. I may not personally agree with it. But it is her decision.”
He contented that the High Court missed the Petitioner’s point that the need to into the question of essential religious practice under Article 25 does not arise if the Petitioners succeed in showing that there can be no restriction on their right to wear Hijab. He pointed out that the High Court went straight into ‘Essential Religious Practice’.
Advocate Kamat even highlighted the divergence of views between Karnataka, Kerala and Madras High Court judgements on whether Hijab was an Essential Religious Practice.
Further expressing his concern over High Court’s comparison of students with prisoners, he stated, “I am amazed. High Court says once you go to school you are in the “custody” of teachers… High Court gives the examples of prison, detention and mentions qualified public spaces…this is leading to the argument that once you enter a school premise, you are like a convict.”
Denying that the High Court compared students with prisoners, Justice Gupta retorted saying, “This comparison is of general nature. What it says, qualified public spaces like schools, courts…you are in court, you are wearing a uniform… It is a way of expression, nothing more than that.”
Article 25(1): Restrictions imposed subject to public order, morality and health and other Fundamental rights
Kamat argued that the impugned Government Order could not be a valid restriction for the purposes of first part of Article 25 as the state had not justified the restriction of Hijab in school either on public order or morality or health. Whereas the State had reasoned that a headscarf would offend other people which could not be valid reason to ban hijab.
However, it was brought to Kamat’s attention by Justice Dhulia that he could have made an argument under article 25 only if he had argued that wearing hijab was an essential religious practice for Islam but he had refused to argue on those lines hence he could not make that now.
Kamat reportedly stated, “No, I will make it clear. This right comes from Article 19 and also Article 25. Every religious practice may not be essential, but that does not mean that State can keep restricting it as long as it does not fall foul of public order, morality or health. For example, when I wear a Namam, Senior Advocate K Parasaran, he is a father like figure for us, he wears Namam…Does it affect discipline or decorum in Court?”
Justice Gupta, however, interrupted stating that dress code in court could not be compared with the present case. In response to this, Kamat further argued, “I can wear head gear, kara, as part of my religious belief. It may not be a core religious practice. But as long as it does not affect public order, health or morality, it can be allowed…Your lordships know the Anand Margis case, where Tandav dance was prohibited.”
However, Justice Gupta dismissed the argument and stated that wearing a hijab in street may not offend anyone but wearing it in school might affect the kind of public order the school wanted to maintain.
Heckler’s Veto Principle: Public Order v. Free Religious Expression
Senior Advocate went on to talk about the Heckler’s Veto which is the suppression of speech by the government, because of the possibility of a violent reaction by hecklers. Kamat trying draw an inference from the same stated, “School can’t take that ground of public order. If I wear a head gear and someone gets offended and makes an issue and shouts slogans, police can’t say I can’t wear it. That will be hecklers veto. It is on this basis that the ban was imposed. Last day the AG said the Government Order was issued after some students demanded to wear saffron shawls and the ban was imposed in that context. Can hecklers veto be allowed? You (State) can’t take a facile ground that public order will be violated. It is your duty to ensure an atmosphere of public order so that I can exercise my rights freely.”
However, Justice Gupta stated, “There are issues where there are disputes within religious precincts itself. Public order is a state responsibility at all places. Sometimes even in court…Mr Kamat don’t waste time on public order…You read the Government Order and tell subsequently what was held by the Court.”
Article 25(2): Does Karnataka Education Act, 1983 provide for ‘social reform in a religion’?
Article 25 (2) which provides that the state can make any law providing for social welfare and reform of Hindu religious institutions of a public character to all classes and section of Hindus. Kamat asked whether wearing a headscarf violated someone’s fundamental rights.
To this, Justice Gupta remarked, “It is not the question of violating other’s fundamental rights, the question is whether you have the fundamental right.”
LiveLaw quoted Kamat as saying, “State is pitching on the Education Act. The question which arises for your lordships is which is this great law which provides for social reform. None. Look at the preamble of Education Act, Section 7, Rule 11, none of the framers of the law ever thought this will be put to restrict right under Article 25. Any restriction on right must be direct and proximate, not indirect or inferential. The High Court says the Act is “as clear as Gangetic waters”. I submit it is totally muddied. According to the State, the Preamble (to the Education Act) is a restriction. High Court says the objective of promoting secular outlook mentioned in the Preamble to the Act is a restriction. I am at pains to understand how can this be a restriction. Then Section 7 of the Act. A scheme to promote harmony which the State can make under Section 7 is construed as a restriction on wearing hijab. HC refers to the power of the State to frame a scheme to restrict practices derogatory to women. Where does it say hijab is derogatory to women?”
Practice of Religion v. Display of Religion
He further argued that restrictions on fundamental rights on the ground of public order must have direct and proximate link with public order and not indirect or inferential.
He reportedly argued, “Whether uniformity in public space is a ground to restrict Article 25? Whether a Muslim girl wearing a head scarf is an affront to discipline? Article 25 does not recognise this ground of uniformity or discipline. The argument of the State is I wear hijab, other students will wear orange shawl. Wearing of orange shawl is not a genuine religious belief. It is a belligerent display of religion, that if you wear this, I will wear this. Article 25 only protects innocent bonafide practice of religion. Wearing a namam, yes, wearing a hijab yes. Wearing of orange shawl is not a bona fide practice.”
Freedom of Conscience and Freedom of Religion
The High Court, the freedom of conscience was distinct from religion based on Dr. Ambedkar’s Constituent Assembly Debates. According to Kamat, the debate did not mention about the distinction.
He reported argued, “Hindu religion provides for 16 forms of puja. Today somebody lights a diya, is it freedom of religion or conscience? People carry photos of Rama or Krishna. I do. It gives a sense of confidence. Is it religion or conscience? It is not something ordained in the scriptures. High Court has gone into a dangerous territory of separating conscience from religion. We have gone beyond the stage of seeing rights separately. The law has developed that all rights are interlinked. Every member in the Constituent Assembly Debate may have said something. We can’t say everything said in Constituent Assembly Debates as gospel truth…Ghanshyam Upadhyay is the only member who spoke of conscience. He says nothing is definite. The only other place where conscience is discussed is on the draft Article of present day Article 32.”
Justice Dhulia enquired what about a person who may not believe in any religion? To which Kamat reportedly replied that such a person had a right to conscience and that a person may follow some diktats of religion out of belief and some other diktats out of conscience.
Government’s Order
Concluding his arguments, Advocate Kamat finally raised questions with respect to administrative law. He stated, “My question is whether the Government Order suffers from a complete non-application of mind and whether the High Court could have supplied reasons for he Government Order? The AG rightly conceded that none of the judgments mentioned in the Government Order prohibited Hijab. But the State says as per aforementioned judgments, ban of hijab is not violating Article 25. That is complete non-application of mind…But the High Court says that the reasons do not matter as long as power to issue Government Order is there. It is settled law Court cannot supplant reasons. And High Court has done so in this case.”
He further argued that the power in the present case could not be delegated to any non-State actor. He reportedly stated, “President of CDC is an MLA. If they are placed under the custody of the MLA, kindly see the repercussions…MLA is not an authority subordinate to Stae Government. Can they decide issues of public order, morality etc under Article 25? See the enormity…High Court says I have not challenged the circular (constituting CDC). I don’t need to. Once you start investing in CDC state power, we can challenge.”
Are all religious practices protected or only essential religious practices?
Speaking about the dilemma, Advocate Nizam Pasha appearing for petitioners reportedly stated, “The question whether all religious practice or only essential religious practice are protected is a question on which 7-judges, 5-judges and 3-judges have taken different views. In Bijoe Emmanuel, three judges held that any belief which is held conscientiously held is protected. So not just essential practices, but any practice which is conscientiously held is protected. So, this put your lordships in a dilemma. There is variance between 7-judges and 5-judges and the 9-judges bench is now examining.”
Court interpreting religious doctrines
Referring to the Babri judgment, Advocate Pasha stated that the Court must not go into the interpretation of theological doctrines. He reportedly submitted, “Law is laid down on the interpretation of religious scriptures. There are multiple sects and multiple views in religion and each individual’s understanding of scripture must be protected. In Shayra Bano case, the Court did not interpret scriptures. It was only the judgment of Justice Kurian Joseph which proceeded on scriptures. The majority judgment went by the statute.”
Misterpretation of Islamic Verses by Karnataka High Court
Advocate Pasha argued that the High Court had misinterpreted Islamic verses to hold that Hijab was no mandatory. Advocate Pasha submitted that the High Court had referred to an unrelated verse, which stated that nobody can be compelled to convert to Islam, to hold that Hijab was not mandatory.
When Justice Gupta asked him to show the verses which said that holding Hijab as necessary, he referred to Surah An-Nur Ayat 31 (24:31 Quran)
Advocate Pasha referred to Surah 24 and submitted that basis a misreading of the footnote, the High Court concluded that the wearing of the Hijab is recommendatory and not mandatory. The High Court had wrongly misread the opinion of a translator and not the translation of the text. The footnote concerning the verse was about ‘Jilbab’ which covers the whole body whereas ‘Hijab’ covered only the head and chest.
Further, he submitted that the High Court had held Hijab as non-mandatory due to absence of prescription of penance on penalty. This being another misunderstanding, he stated, “There is no temporal punishment for a spiritual disobedience. Religion has spiritual implications for after life…There is no prescription in Quran. Even for violation of Namaz, Roza, there is no temporal punishment. Quran is the word of God and belief in the word of God is the first precondition for being a Muslim.”
Advocate Pasha further submitted that the commentaries cited by the High Court were used in the wrong context. He stated, “For believing Muslims, Quran is perfect for all the times to come. So, to say the verses have lost meaning with time is bordering on blasphemy.”
He further referred to Hadis and stated, “When the Prophet is quoted as saying veil is more important, and when the Quran says follow the prophet, nothing more is required to show it is essential…The High Court questioned the translation placed by Muhammad Muhsin Khan, doubting his credentials. But the other side never disputed his credentials. This is something which found its way to the HC judgment on its own…That way Abdulla Yusuf Ali (whose translation was relied on by the HC) was not even a Sunni.”
He also submitted that the comparison made with Triple Talaq by the High Court was irrelevant as Triple Talaq was not mentioned in Quran or even in Hadis.
Protection of “Cultural Practices”
With respect to the High Court’s observation that hijab was at best a cultural practice, he reportedly stated, “This finding is not borne out by anything but it is the finding of the learned judges themselves. Opinions of commentators are cited, but even that does not support the conclusion, leave aside the verse. Justice Gupta mentioned in morning wearing of turban as cultural. It is protected. Wearing of hijab, even if regarded as cultural, is protected…If a Sikh has to wear a turban, and he is told not to come to school if he wears turban, it is violative.”
However, Justice Gupta stated that a comparison with Sikh may not be proper as the five Ks of Sikhism (Kesh, Kara, Kanga, Kaccha, Kirpan) had been held to be mandatory. The bench stated that carrying a Kirpan was recognized by the constitution and there were judgments on other Ks being mandatory too.
Advocate Pasha contended that the exact same analogy could be applied to Islam. He stated, “I went to an all boys School, fortunately or unfortunately. And in my class, there were several Sikh boys who wore turban of the same colour of uniform. It has been established that it will not cause violation of discipline.”
To this Justice Gupta remarked, “There was a case in Punjab. A college run by SGPC. The condition of admission was that anybody who won’t follow tenets of Sikhism can’t get. A girl was denied admission on ground she trimmed her eyebrows and the matter is pending here…Please don’t make any comparison with Sikhism. These are all practices well established, well engrained in the culture of the country.”
When Advocate Pasha remarked that we are deluding ourselves if we think we are like France, Justice Gupta retorted, “We don’t want to be at par with France or Austria. We are Indians and want to be in India.”
Speaking about the negative impact of the hijab ban on students he stated, “Islam is also there for 1400 years and the Hijab is also present. A survey of Sikh students in France show how they felt humiliated to enter school. It showed how they lost their identity and how they wanted to leave the country. Even Muslims. Muslim students were negatively impacted.” However, the bench found this comparison irrelevant.
Advocate Pasha concluded his arguments by reciting verses in Quran, “O you disbelievers! I do not worship what you worship, nor do you worship what I worship. I will never worship what you worship, nor will you ever worship what I worship. You have your way, and I have my Way.”
It means that Quran mandates respect towards other religions.
Brief background of the hiijab controversy
The hijab controversy had originally erupted in wake of a Government Order issued on February 5 against the wearing of religion specific clothing in schools and pre-university colleges where a uniform has been prescribed. What followed was harassment of hijab-wearing girls on school and college campuses across the state.
Some were surrounded and heckled, others faced intimidation tactics by members and supporters of right-wing Hindutva groups. Some were even denied entry into educational institutions until they removed the traditional headscarf.
The contentious matter underwent several hearings in the Karnataka High Court that examined the following key questions:
- Whether wearing hijab is essential practice in Islamic faith, protected under Article 25 of the Constitution?
- Whether prescription of school uniform is not legally permissible as being violative of petitioner’s fundamental rights in alia guaranteed under Article 19 (1) (a) that is Freedom of Expression and Article 21 that is Privacy, of the Constitution?
- Whether the Government Order dated February 2, 2022, apart from being incompetent is issued without application of mind and further is manifestly arbitrary and therefore violates articles 14 and 15 of the Constitution?
- Whether any case is made out in WP 2146 of 2022 for the issuance of direction for initiating disciplinary enquiry against respondent no. 6 to 14 and for issuance of Writ of Quo warranto against respondent no. 15 and 16?
The high court ruled that no case was made out for invalidating the Feb 5 Government Order.
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