Shifting the debate from personal choice and an individual’s agency to religious freedom; lack of scrutiny of the Karnataka government’s order allowing colleges to restrict wearing a hijab; separation of freedom of conscience from religious freedom: these are the key grounds on which the Karnataka High Court verdict on the hijab ban is likely to be challenged in the apex court.
Endorsing the state’s case, the 129-page verdict places the essential religious practice test at the centre of the debate on hijab sidestepping 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.
Indeed, the bench, right through, underlines “restrictions” reinforcing the government’s case than interpreting “freedoms” the petitioners invoked.
“The petitions we are treating do not involve the right to freedom of speech & expression or right to privacy, to such an extent as to warrant the employment of these tests for evaluation of argued restrictions, in the form of school dress code,” the bench said.
It argued that the “complaint of the petitioners is against the violation of essentially derivative rights,” rather than “the core of substantive rights.” Then the court used this argument to claim that the protection available to “substantive rights” cannot be “stretched too far even to cover the derivative rights of this nature.”
That’s not all. The court compared students in schools, which it called “qualified public spaces” with detainees in prison who cannot assert their individual fundamental rights.
“It hardly needs to be stated that schools are ‘qualified public places’ that are structured predominantly for imparting educational instructions to the students…Such ‘qualified spaces’ by their very nature repel the assertion of individual rights to the detriment of their general discipline & decorum,” the court said.
Students wearing burqa and hijab protest demanding online classes or permission to wear hijab in offline classes, outside I.D.S.G Government College, in Chikmagalur, Saturday, March 5, 2022. (PTI Photo)
The petitioners made several other arguments on direct and indirect discrimination against Muslim women caused by the February 5 Karnataka government order issued under the Karnataka Education Act, 1983 which cited public order, unity and integrity of the country to restrict wearing the hijab.
However, the court was dismissive of this. “By no stretch of imagination, it can be gainfully argued that prescription of dress code offends students’ fundamental right to expression or their autonomy. In matters like this, there is absolutely no scope for complaint of manifest arbitrariness or 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. It is nobody’s case that the dress code is sectarian,” it said.
The court’s examination of the discrimination argument decoupled the government order from the petitioner’s claim against the uniform. First, 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.”
While public order is one of the grounds on which freedom of religion can be restricted under the Constitution, the state government had pleaded to a drafting error in the language. Despite the government’s admission, the Court did not go into the merits of the order and gave the benefit of the doubt to the state.
“We hasten to add that certain terms used in a Government Order such as ‘public order’, etc., cannot be construed as the ones employed in the Constitution or Statutes. There is a sea of difference in the textual structuring of legislation and in promulgating a statutory order as the one at hands. The draftsmen of the former are ascribed of due diligence & seriousness in the employment of terminology which the government officers at times lack whilst textually framing the statutory policies,” the court said.
On freedom of conscience, the petitioners argued that a right distinct from the right to religious freedom exists to wear the hijab. The court, however, said that merely citing their conscience would not suffice and that the petitioners had to bring evidence to prove their conscience.
“There is no evidence that the petitioners chose to wear their headscarf as a means of conveying any thought or belief on their part or as a means of symbolic expression. Pleadings at least for urging the ground of conscience are perfunctory, to say the least,” the court said.
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Students attend classes in Bengaluru on Tuesday. (Express photo by Jithendra M) 
Students wearing burqa and hijab protest demanding online classes or permission to wear hijab in offline classes, outside I.D.S.G Government College, in Chikmagalur, Saturday, March 5, 2022. (PTI Photo)
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