On August 2, 2023 N.G Acharya & D.K Marathe College located at Chembur, Mumbai initially prevented girl students from entering the premises while wearing burkha, citing its own uniform policy about which they communicated earlier on May 1, 2023. However, following a protest by parents and students and the intervention of senior police officials on August 2, 2023, the college relented. Security guards at the Chembur-based college, asked students to remove their burkhas before entering on Wednesday, which sparked controversy and led to parents gathering at the college. Videos of the incident circulated, prompting senior police officials to intervene and discuss the matter with the parents and college authorities. In response to the situation, Muslim girl students expressed their willingness to remove the Burkha inside the premises but requested permission to wear scarves in the classroom. After negotiations, the tension was resolved when the college management agreed to this arrangement. The students will now remove the burkha in the washroom before attending classes.
A similar dispute occurred In early February 2022, in the state of Karnataka concerning school uniforms. The issue began when some Muslim students attending a junior college were denied entry because they wanted to wear hijab to classes. The college argued that this violated their uniform policy, which was also followed by students of other religions. In the weeks that followed, the dispute spread to other schools and colleges in the state, with Hindu students staging counter-protests and demanding to wear saffron scarves. On February 5, 2022, the Karnataka government issued an order stating that uniforms must be worn compulsorily where policies exist, with no exception allowed for the wearing of hijab. Subsequently, several educational institutions cited this order and denied entry to Muslim girls wearing the hijab.
The matter reached High court where court ruled in favour of government order on hijab ban in the schools
On March 15, 2022, the Karnataka High Court upheld the ban on hijab by educational institutions, stating that it is not an essential religious practice in Islam and, therefore, not protected under Article 25 of the Constitution guaranteeing the right to practice one’s religion.
To arrive at this decision, the High Court conducted its own investigation by referring to The Holy Quran: Text, Translation, and Commentary by Abdullah Yusuf Ali, which was previously used by the Supreme Court of India in the Shayara Bano case 2017 9 SCC 1. According to Ali’s commentary, the Quran recommended hijab as a measure of social security to address cases of “molestation of innocent women” during the time of Jahiliya (pre-Islamic era) and not as a religious practice essential to the Islamic faith.
To read the judgement – https://www.verdictum.in/pdf_upload/wp2347-2022-1337422.pdf
Later the issue went to Supreme Court where a split verdict was seen and the matter is yet to be heard by a larger bench of 5 judges.
Justice Dhulia stated that determining whether the hijab is an essential religious practice under Islam or not was not crucial for resolving the dispute. He firmly believed that if the belief is sincere and harmless to others, there should be no justifiable reason to ban hijab in a classroom. According to him, the petitioners were asserting their individual rights, not community rights.
Courts should not get involved in resolving theological questions, as there are multiple religious views on such matters. They must not interfere when constitutional boundaries are breached or unjustified restrictions are imposed.
Justice Dhulia disagreed with the Karnataka High Court’s flawed understanding that the petitioners couldn’t assert their fundamental rights in a public place like a classroom. He found it odd to compare a school with a war room, emphasizing that discipline should not come at the expense of dignity and freedom. Forcing a schoolgirl to remove her hijab at the school gate invaded her privacy and dignity, violating Article 19(1)(a) and Article 21 of the Constitution. He stressed that the right to dignity and privacy was inherent and not derivative, referencing the Puttaswamy[i] judgment and Justice D.Y. Chandrachud’s observations on the link between privacy and human dignity.
Justice Gupta, on the contrary, upheld the Karnataka High Court’s perspective that the hijab did not constitute an essential religious practice. However, Justice Dhulia believed that the court should not have engaged in this debate at all, emphasizing that it should have first examined whether the restriction by the GO (Government Order) was valid or “hit” by the doctrine of proportionality. Justice Gupta argued that discipline was a crucial aspect of learning for students in schools, and going against rules would contradict the essence of discipline. While students had the right to education under Article 21, this did not grant them the right to insist on wearing additional religious attire as part of their uniform in a secular school. Furthermore, Justice Gupta emphasized that uniforms played a role in creating equality among students. Allowing one faith to wear specific religious symbols would undermine the principle of secularism, and the right to education remained accessible, leaving it to the student’s choice to avail it or not. He asserted that the freedom of expression under Article 19(a) did not extend to the headscarf, supporting the idea that the Karnataka GO(government order) promoted an equal environment. Anything worn by students under their shirts could not be deemed objectionable in terms of the issued GO(government order) Justice Gupta stressed that religion should have no significance in a secular school operated by the State, and promoting fraternity as a constitutional goal would be compromised if students were allowed to bring religious symbols into the classroom. He concluded that none of the fundamental rights were absolute and should be interpreted collectively as a whole.
To read the judgement – https://www.livelaw.in/pdf_upload/75-resham-v-state-of-karnataka-15-mar-2022-412165.pdf
Impact of the issue in Karnataka
Following the High Court’s verdict upholding the hijab ban in government schools, numerous female students either faced rejection or chose not to appear for their class 10th and 12th board exams. In August 2022, six months after the ban was imposed, an RTI response disclosed that 145 out of 900 (16%) female Muslim students from government and aided colleges in Dakshina Kannada and Udupi districts, which were at the epicentre of the hijab controversy, obtained transfer certificates. Among these students, some enrolled in colleges where hijab was allowed, while others refrained from admission due to financial constraints in paying the college fees. The percentage of transfer certificates was higher in government colleges (34%) compared to aided colleges (8%).
A study published by the human rights body, People’s Union for Civil Liberties (PUCL), indicated that the hijab ban exacerbated social divisions and instilled fear among Muslims in Karnataka.
The court’s failure to consider the downside is evident as it overlooks the fact that Muslim women are among the least educated communities in the country. The notion of positive discrimination, which allows for certain rights or practices to benefit a community’s education, seems to have been disregarded. This issue goes beyond the hijab or a mere piece of cloth; it is fundamentally about education. Incidents like these, on the rise, foster a sense of disaffection among the masses and contribute to their further isolation. To put a stop to such occurrences, the judicial responsibility must be carried out with utmost respect and sensitivity. In times of communal division, it becomes crucial to deliver judgments and implement policies that prioritize education and the development of communities, rather than contributing to their alienation.
https://www.verdictum.in/pdf_upload/wp2347-2022-1337422.pdf