Explained: Courts rulings on hijab

On February 5, the Karnataka government passed an order exercising its powers under Section 133(2) of the Karnataka Education Act, 1983. The provision grants powers to the state to issue directives for government educational institutions to follow. In 2013, under this provision, the state had issued a directive making uniforms compulsory for education institutions. Referring to the 2013 directive, the latest directive specifies that a headscarf is not part of the uniform.

It states that wearing a headscarf is not an essential religious practice for Muslims that can be protected under the Constitution. The order takes refuge in three cases decided by different High Courts to hold that banning the headscarf is not violative of fundamental rights, particularly freedom of religion.

The petitioners, however, have argued that the facts and circumstances of the three cases are different and cannot be applied to the Karnataka case. This means that the High Court will have to first decide whether wearing a hijab is an essential religious practice.

What are these three cases?

The three cases cited in the government order are from the Kerala, Bombay and Madras High Courts.

Kerala High Court, 2018: In Fathima Thasneem v State of Kerala, a writ petition had been moved by Mohammad Sunir, the father of two minor girls aged 12 and 8. The petitioner challenged the school’s denial of permission to wear full-sleeved shirts and a headscarf as it was against the prescribed dress code. A single-judge Bench of the Kerala High Court ruled in favour of the school which was a Christian Missionary school, a minority educational institution. The court said that “collective rights” of the school must be given primacy over individual rights of the students.

In the current case in the Karnataka High Court, senior advocate Devadatt Kamath argued on Thursday that this case cannot be a valid precedent as it refers to a minority education institution as opposed to a government educational institution. Constitutionally, minority educational institutions have greater freedom to regulate their affairs.

Bombay High Court, 2003: In Fathema Hussain Sayed v Bharat Education Society, a minor student had challenged the school’s prescribed dress code that did not allow the wearing of a headscarf. Since the minor girl attended an all-girls school, the Bombay High Court ruled against her, despite the argument that wearing a headscarf is an essential religious practice which must be protected under the Constitution. The High Court referred to relevant verses from the Quran and held that the book did not prescribe wearing of a headscarf before other women.

“A girl student not wearing the head scarf or head covering studying in exclusive girls section cannot be said to in any manner acting inconsistent with the aforesaid verse 31 or violating any injunction provided in Holy Quran,” the court held.

In the Karnataka case, the petitioners have argued that even through the state government had cited this Bombay HC case to buttress the point that courts have refrained from interfering with prescribed dress codes for educational institutions, the current case actually supports the cause of the petitioners and not the state. Since the decision is in “the context of Muslim girls studying in an exclusively girls sections”, the counsel for the petitioners argued that as a corollary, headscarves must be allowed in a co-education establishment.

Madras High Court, 2004: Sir M Venkata Subba Rao, Matriculation Higher Secondary School Staff Assn v Sir M Venkata Subba Rao, Matriculation Higher Secondary School was a case challenging the dress code imposed by the management of a school on teachers. Although the Madras High Court held that the imposition of the dress code had no statutory backing, it refused to interfere on the grounds that the teachers “should set high standards of discipline and should be a role model for the students”.

This ruling has no discussion on either wearing hijab or rights under Article 25 of the Constitution which guarantees religious freedom.

What are the other grounds on which the Karnataka government order has been challenged?

The petitioners have argued that wearing a hijab is an expression protected under Article 19(1)(a) of the Constitution which guarantees the right to freedom of speech and expression. Constitutionally, a right under Article 19(1)(a) can only be limited on the “reasonable restrictions” mentioned in Article 19(2). This includes sovereignty and integrity of India, friendly relations with foreign states, public order, decency or morality or in relation to contempt of courts, defamation or incitement to an offence.

The petitioners have argued that a student silently wearing a hijab/headscarf and attending class cannot in any manner be said to be a practice that disturbs “public order” and is only a profession of their faith.

The petitioners have also argued that the ban on headscarves violates the fundamental right to equality since other religious markers, such as a turban worn by a Sikh, are not explicitly prohibited. Senior advocate Sanjay Hedge, appearing for the petitioners, also argued that the rules prescribed wearing of a dupatta for women and the state cannot dictate the manner of wearing that dupatta if a student wishes to cover her head with it.

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