Hijab Ban: Karnataka

POLITY/ GOVERNANCE/ SOCIETY

• GS-2: Fundamental Rights
• GS-2: Judiciary and its working

Hijab Ban: Karnataka

Context: Karnataka High Court, in Resham vs State of Karnataka, upholds a ban imposed on the use of hijabs by students in classrooms across the Karnataka State.

• The petitioners have moved the Supreme Court against Karnataka High Court’s judgment in the hijab case.

What did the petitioners argue?

• The petitioners were a group of Muslim girls barred from wearing the hijab in class in a government college in Karnataka’s Udupi district – they protested, but the college didn’t relent, and the matter ended up in court. 
• The girls argued that banning the hijab was not only discriminatory, but also impinged on their right to freedom of expression and religion. Their faith, they said, required them to cover their head. 
• The petitioners further contended that Muslim girls are least educated and least represented in classrooms and if they are shut out in this fashion, it will be detrimental for their educational career. 

Key Highlights of the verdict by Karnataka High Court

• The court holds that the wearing of a hijab is not essential to the practice of Islam, and, therefore, the petitioners’ right to freedom of religion is not impinged; 
• The court said that a uniform itself is not discriminatory and, subsequently, it held the government order “per se does not prescribe any uniform but only provides for prescription in a structured way.”

• Students can’t object to uniform prescribed by educational institutions. Prescription of Uniform for students in an institution falls under the category of reasonable restrictions.
• The court held that there is no discrimination inter alia under Articles 14 & 15, when the dress code is equally applicable to all the students, regardless of religion, language, gender or the like.
• Institutional discipline prevails over individual choice.
  • It finds that there is no substantive right to free expression and privacy that can be claimed within the confines of a classroom.
  • It stated that schools are ‘qualified spaces’ and by their very nature it repels the assertion of individual rights to the detriment of their general discipline & decorum
• The bench had also made it clear that this order is confined to institutions wherein the College Development Committees (CDCs) have prescribed student dress code/uniform.

What are the criticisms of the above judgement? 

• Some argue that the court should’ve considered the agency argument instead of focusing only on the essentiality test.
  • Constitutional experts and legal scholars have always questioned the essential religious doctrine whereby Courts are entering into theological terrain where lawyers and judges have little knowledge about.

• The court sidestepped arguments made by the petitioners on the right to freedom of speech and expression and the right to equality — dismissing them as “derivative rights” that are lesser rights.

• The court compared students in schools, which it called “qualified public spaces” with detainees in prison who cannot assert their individual fundamental rights.
• Wearing a bindi or mangalsutra or having sacred threads around their wrist are also considered by some as religious symbols. Therefore, it is argued that if government implement uniforms, then it should be across the board
• The court rejected the argument in favour of ‘reasonable accommodation’, by which a pluralist society may allow the classroom to reflect social diversity without undermining the sense of equality among students.
• Also, there is a fear that the hijab ban will now go national.

Conclusion

• Freedom of religion is important because freedoms are important, and not because religions are important.

Connecting the dots:

• Essential Religious Doctrine
• The future of Indian Secularism