Baba’s Explainer – Hijab Verdict

• The doctrine of “essentiality” was invented by the SC in the Shirur Mutt case in 1954.
• Article 25 of the Constitution guarantees the “freedom of conscience and the right freely to profess, practise and propagate religion”. However, this right isn’t absolute and is subject to public order, morality, health, and other fundamental rights.
• Courts, over the years, have ruled that this right would protect only “essential religious practices” and not all religious practices.
• Essential religious practices are those that are vital or fundamental to religion and if they are not followed, the religion itself will change.
• Furthermore, denying essential religious practices would be a violation of Article 25, which addresses the freedom of conscience as well as the free profession, practice, and propagation of religion.
  • Therefore, it a practice is not considered as essential to a religion, then it can be liable to the regulations & restrictions by the State.
• Courts have adopted varied approaches to the test over the years. In some cases , they relied on religious texts to determine essentiality, in others on the empirical behaviour of followers, and in a few, on whether the practice in question existed at the time the religion originated.
• Again in Dargah Committee, Ajmer v. Syed Hussain Ali, the Court stated that a clear difference must be made between religious practices that are essential and integral to religion and religious practices that are merely superstitious. Thus, the protection of Articles 25 and 26 was limited to religious practices that were essential and integral to the religion.
• The essential practices test is not without alternatives. In his concurring opinion, in the case concerning the ban on entry of women into the Sabarimala temple, Justice D.Y. Chandrachud proposed one such doctrine: a principle of anti-exclusion.
• The anti-exclusion principal postulates that where a religious practice causes the exclusion of individuals in a manner which impairs their dignity or hampers their access to basic goods, the freedom of religion must give way to the over-arching values of a liberal constitution.

• In 2015, at least two petitions were filed before the Kerala High Court challenging the prescription of dress code for All India Pre-Medical Entrance which prescribed wearing “light clothes with half sleeves not having big buttons, brooch/badge, flower, etc. with Salwar/Trouser” and “slippers and not shoes”.
  • Admitting the argument of the Central Board of School Education (CBSE) that the rule was only to ensure that candidates would not use unfair methods by concealing objects within clothes, the Kerala HC directed the CBSE to put in place additional measures for checking students who “intend to wear a dress according to their religious custom, but contrary to the dress code”.
• In Amna Bint Basheer v CBSE (2016), the Kerala HC examined the issue more closely.The Court held that the practice of wearing a hijab constitutes an essential religious practice but did not quash the CBSE rule.
  • The court once again allowed for the “additional measures” and safeguards put in place in 2015.
• However, on the issue of a uniform prescribed by a school, another Bench ruled differently in Fathima Tasneem v State of Kerala (2018).
  • A single Bench of the Kerala HC held that collective rights of an institution would be given primacy over individual rights of the petitioner.

• 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 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 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 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.
• 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.

This verdict was however appealed to Supreme Court that was adjudged by two-judge bench.

• The two-judge Bench of the Supreme Court has given split verdict in the case.
• A split verdict is passed when the Bench cannot decide one way or the other in a case, either by a unanimous decision or by a majority verdict.
• Split verdicts can only happen when the Bench has an even number of judges.
• This is why judges usually sit in Benches of odd numbers (three, five, seven, etc.) for important cases, even though two-judge Benches — known as Division Benches — are not uncommon.
• It is not like that split verdict is unprecedented. It has happened before as well
  • For ex: In May 2022, a two-judge Bench of the Delhi High Court delivered a split verdict in a batch of petitions challenging the exception provided to marital rape in the Indian Penal Code (IPC).
  • Justice Rajiv Shakdher held that the exception under Section 375 (which deals with rape) of the IPC is unconstitutional, while Justice C Hari Shankar held that the provision is valid.

This judgement was given by Justice Sudhanshu Dhulia

• He sought to interpret the debate from the point of view of promoting diversity, and providing educational opportunities to women.
• He stated that “our educational spaces are where our children just waking up to the rich diversity of this nation, need to be counselled and guided, so that they imbibe our constitutional values of tolerance and accommodation, towards those who may speak a different language, eat different food, or even wear different clothes or apparels!. This is the time when they must realise that in diversity is our strength”
• He said that “under our Constitutional scheme, wearing a hijab should be simply a matter of Choice.”
• He agreed that school is a public place, but also noted that drawing a parallel between a school and a jail or a military camp, is not correct.
• He agreed to the argument regarding discipline in a school, but stated that discipline not at the cost of freedom, not at the cost of dignity.
• Asking a pre university schoolgirl to take off her hijab at her school gate, is an invasion on her privacy and dignity. It is clearly violative of the Fundamental Right given to her under Article 19(1)(a) and 21 of the Constitution of India.
• This right to her dignity and her privacy she carries in her person, even inside her school gate or when she is in her classroom. It is still her Fundamental Right, not a “derivative right” as has been described by the High Court.”
• He asked as to what is more important to schools: Education of a girl child or Enforcement of a Dress Code!
• It is much more difficult for a girl child to get education, as compared to her brother. Therefore, the issue be seen in the perspective of the challenges already faced by a girl child in reaching her school.
• Justice Dhulia referred to submissions that the fallout of the hijab ban has been that some students have not been able to appear in their Board examinations, and many others have had to seek transfer to other schools, most likely madrasas, where they may not get the same standard of education.
• He said wearing hijab “may or may not be a matter of essential religious practice, but it still is, a matter of conscience, belief, and expression. If she wants to wear hijab, even inside her classroom, she cannot be stopped as 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.”

• This judgement was given by Justice Hemant Gupta
• He upheld the March 15 Karnataka High Court ruling validating the ban on wearing hijab in classroom.
• He rejected the argument that denying students the right to wear a headscarf also denies them the right to attend classes.
• He observed that hijab ban does not amount to denial of right to education if a student, by choice, does not attend the school.
• He wrote, “The State has not denied admission to the students from attending classes. If they choose not to attend classes due to the uniform that has been prescribed, it is a voluntary act of such students”.
• A student, thus, cannot claim the right to wear a headscarf to a secular school as a matter of right.
• Justice Gupta held that the “argument that the wearing of a headscarf provides dignity to the girl students is also not tenable”.
• He stated that students are at liberty to carry their religious symbols outside the schools but in pre-university 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.
• It was also noted that wearing uniforms (& prohibiting hijab) is for the harmonious development of the mental and physical faculties of the students and to cultivate a secular outlook
• Justice Gupta said the right under Article 19(1)(a) “does not extend to the wearing of headscarf. Once the uniform is prescribed, all students are bound to follow it. The uniform is to assimilate the students without any distinction of rich or poor, irrespective of caste, creed or faith
• Government’s intention of maintain uniformity is reasonable as the same has the effect of regulation of the right (of freedom of speech and expression) guaranteed under Article 19(1)(a).”
• He reiterated that no fundamental right is absolute and can be curtailed by following due procedure, and that the freedom of conscience and religion under Article 25 is subject to restrictions provided under Article 25(1).
• Such right is not just subject to public order, morality and health but also ‘other provisions of Part III’. This would also include Article 14 which provides for equality before law.
• He noted that the Constitutional goal of fraternity would be defeated if the students are permitted to carry their apparent religious symbols with them to the classroom.
• Turning down arguments equating wearing hijab to wearing rudraksha or a cross, the Judge said the government order necessarily excludes all religious symbols visible to naked eye. It was argued that rudraksha and cross are worn by the students under his/her shirt cannot be said to be objectionable
• He also found it unnecessary to send the matter to a five-judge Constitution Bench as it does not “raise any substantial question of law”.

• In case of a split verdict, the case is heard by a larger Bench.
• The larger Bench to which a split verdict goes can be a three-judge Bench of the High Court, or an appeal can be preferred before the Supreme Court.
• In the case of the hijab verdict, the CJI, who is the ‘master of the roster’, will constitute a new, larger Bench to hear the matter.