On Thursday, a two-judge bench of the Supreme Court of India delivered a split judgement in the petition filed against the Karnataka High Court order upholding the ban on hijab in schools and colleges in Karnataka. As one judge upheld the high court order while the other overturned the ban on the hijab, the bench sent the matter to the Chief Justice to send it to a larger bench.
In the judgement, Justice Hemant Gupta ruled in favour of the ban on hijab in educational institutions having prescribed dress codes, and Justice Sudhanshu Dhulia ruled in favour of the pro-hijab petitioners. Both judges issued two separate judgements, which were published in a single PDF file on the Supreme Court website.
Rejecting the petition, justice Hemant Gupta stressed upon the word ‘secular’, which has been included in the preamble of the constitution to define the nation. He said that although the concept of secularism emerged in the west, it has to be understood differently in India due to the country’s diverse nature.
“Secularism, as adopted under our Constitution, is that religion cannot be intertwined with any of the secular activities of the State. Any encroachment of religion in secular activities is not permissible”, he said. Secularism thus means treating all religions equally, respecting all religions and protecting the practices of all religions, justice Gupta added.
Coming to the plea to revoke the Karnataka High Court order upholding the Government order dated 05/02/2022 saying that students of government schools in the state have to wear uniforms in the schools. The GO had also said that Private schools also should mandate a uniform. Justice Gupta said that the state government is empowered to issue such orders under the Karnataka Education Act, 1983.
After considering the arguments made by advocates Sanjay Hegde, Devadutt Kamat, Rajeev Dhawan, Meenakshi Arora, Jayna Kothari, Salman Khurshid, A.M. Dar, Kapil Sibal, Colin Gonsalves, Aditya Sondhi, Yusuf Muchhala, Huzefa Ahmadi, Dushyant Dave, Prashant Bhushan, Kirti Singh, Rishad Ahmed Chowdhury, Shoeb Alam, Rahmatullah Kotwal, Thulasi K. Raj and Mohd. Nizamuddin Pasha, all of whom appeared for the petitioners, Justice Hemant Gupta said that he does not find any merit in the arguments raised by the appellants.
Referring to various judgements cited by the appellants to support their case, the judge said those judgements are not helpful in the hijab case as they were related to completely different matters and have no parity with the current case. Rejecting the claim of the petitioners against the formation of College Development Committees, Justice Hemant Gupta said that he finds that the State Government has the power to constitute a College Development Committee under section 143 of the Karnataka Education Act.
The advocates of petitioners had also quoted various comments from the constituent assembly debate on religion and wearing visible religious symbols, where the constituent assembly had refused to incorporate any provision on the same in the constitution. Referring to the same, justice Gupta said that the debates show the in-depth knowledge of the members of the Constituent Assembly at that relevant point in time. But more than 70 years later, with the interpretation of various provisions by the Constitutional Courts, it is not advisable to rely solely upon the views of the individual members in such debates.
The judge also rejected comparisons of hijab made with other religious symbols like Rudraksha or Cross, saying that this comparison has been made only to deal with an argument. He added that anything worn by students under their shirts cannot be said to be objectionable in terms of the Government Order.
Agreeing with the arguments made by the government’s lawyers, the judge said that the govt order was issued for all students, and it is not addressed to any particular community. “The circular was issued to the colleges to ensure compliance of norm of uniform in a non-discriminatory manner, irrespective of any religious faith of the students,” Justice Gupta said in his judgement.
He maintained that under Rule 11 of the act, educational institutions have a right to prescribe a uniform to the students, and this Rule has not been challenged. The judge cited various judgements to say that discipline is required to be maintained in schools, and govt can make rules in this regard even for minority institutions.
Justice Hemant Gupta further said that right under Article 19(1)(g) is not absolute but is subject to reasonable restrictions.
The petitioners also argued that only the hijab worn along with the prescribed uniform does not cause any issue of public disorder or disturbance, and the classroom is expected to be uniform but not homogenous. Justice Gupta dealt with the argument in detail, invoking various judgements and laws.
He said that religious freedoms guaranteed by Articles 25 and 26 are subject to restrictions provided under Article 25(1) of the Constitution. Such right is not just subject to public order, morality and health but also ‘other provisions of Part III’. The judge ruled that Government Order banning the hijab in schools comes under this provision.
Justice Gupta further rejected the claim that wearing a hijab by Muslim women is part of essential religious practice in Islam. Referring to a large number of Islamic texts and relevant judgements, he concluded that essential religious practice relates to various religious activities including the management of religious places and the right to worship. But wearing a headscarf in public is not a religious activity. Therefore, wearing a hijab inside schools is not an essential religious practice, as argued by the petitioners.
Countering the ‘choice’ argument made by both the petitioners and the left-liberal lobby, Justice Hemant Gupta said that the students actually want to subjugate their freedom of choice of dress to be regulated by religion. He said that Muslim girls are preferring to be regulated by the Islamic dress code instead of the dress code made by their schools, when they are actually students of government-run schools. It is, therefore, not a matter of choice.
“The equality before law is to treat all citizens equally, irrespective of caste, creed, sex or place of birth. Such equality cannot be breached by the State on the basis of religious faith,” the judge said.
The judgement of Justice Gupta further said that according to Article 25(2), state law will have primacy over religious rights.
Referring to arguments made by the petitioners comparing rights given to Sikhs to wear a turban with hijab, the judge said that it has been established that for Sikhs it is an essential religious practice to retain hair unshorn, keep kirpan etc. Therefore, hijab can’t be compared with exceptions granted to Sikhs. He also cited earlier orders where Muslims employed at the Indian Air Force were not allowed to keep beards.
Ruling in favour of uniforms in schools, the judge said, “The students have been given a uniform platform to grow and take quantum leap in their further pursuits. The homogeneity amongst the students in the matter of uniform would prepare them to grow without any distinction on the basis of religious symbols, if not worn during the classroom studies in a Pre-University College.”
Justice Gupta also said that he does not find any merit in the claim that if the pro-hijab girls are transferred to religious schools, they would be deprived of the opportunity to fraternize
across religious, class and gender boundaries. He said that fraternity cannot be seen from the prism of one community alone. The idea of fraternity has to be applied to the ground realities wherein some students wearing headscarf in a secular school run by the State Government would stand out and overtly appear differently, he said.
The further said, “The concept of fraternity will stand fragmented as the apparent distinction of some of the students wearing headscarf would not form a homogenous group of students in a school where education is to be imparted homogeneously and equally, irrespective of any religious identification mark. The Constitutional goal of fraternity would be defeated if the students are permitted to carry their apparent religious symbols with them to the classroom.”
As the matter relates to Pre-University Colleges, justice Gupta said that “before a student goes for higher studies in colleges, she should not grow with a specific identity, but under the umbrella of equality guaranteed under Article 14 transcending the group identity.” Stating that the Karnataka govt order does not bar students from wearing hijab outside schools, he said, “The students are free to profess their religion and carry out their religious activities other than when they are attending a classroom where religious identities should be left behind.”
Further referring to the claim that only a headscarf does not violate the uniform norms, Justice Hemant Gupta cited the meaning of the word ‘uniform’ from various dictionaries to reject that claim. The uniform prescribed would lose its meaning if the student is permitted to add or subtract any part of uniform, the judge said.
“The schools are nurseries for training the citizen for future endeavours. If, the norms of the uniform in the school are permitted to be breached, then what kind of discipline is sought to imparted to the students,” he asked. He said that the freedom of expression guaranteed under Article 19(1)(a) does not extend to the wearing of headscarf, and once the uniform is prescribed, all students are bound to follow the uniform so prescribed.
Justice Gupta further added that the argument that the wearing of a headscarf provides dignity to the girl students is also not tenable, as the students are attending girls-only schools.
He said, “the students are at liberty to carry their religious symbols outside the schools but in preuniversity college, the students should look alike, feel alike, think alike and study together in a cohesive cordial atmosphere. That is the objective behind a uniform, so as to bring about uniformity in appearances.”
Justice Gupta rejected the claim that by denying the right to wear hijab, students are denied permission to attend classes. He said that the students are admitted to the govt schools irrespective of any religion, race, caste, language etc, but they are required to follow the discipline of schools. They have no right to be in the school in violation of the mandate of the uniform prescribed under the Statute and the Rules, justice Gupta ruled.
He said that the state has not denied permission to the students to attend classes, but it is a voluntary act of students to not follow the dress code of the schools. “It is not a denial of rights by the State but instead a voluntary act of the students,” he said.
The judgement by Justice Hemant Gupta said that he does not find that the Government Order takes away any right of a student available under Article 21. “The right to education under Article 21 continues to be available but it is the choice of the student to avail such right or not. The student is not expected to put a condition, that unless she is permitted to come to a secular school wearing a headscarf, she would not attend the school. The decision is of the student and not of school when the student opts not to adhere to the uniform rules,” the judgement states.
Responding to the request that the Muslim girls be allowed to wear hijab of colour matching with the uniform, the judge said that it will amount to change of the dress code, and the same must be done as per prescribed process. According to the state’s law, any change in uniform can be affected only after serving notice to the parents and once uniform is prescribed, it cannot be changed in five years. He also said that the state has right to insist that the students wear the prescribed uniform.
Responding to the argument that Kendriya Vidyalayas allow hijab for Muslim girls and therefore the Karnataka govt also should allow it, the judge said they are separate entities and have the right to make their own rules. Just because the Kendriya Vidyalaya under the union govt or some other states allows Hijab, it does not mean that the Karnataka govt should also follow that, the judge said. It may be that some States may permit headscarves and others do not, he added.
Considering everything, Justice Hemant Gupta dismissed all appeals and writ petitions challenging the High Court order upholding the Karnataka government’s order mandating strict adherence to uniform norms in pre-university colleges.
