A three-judge bench of the Karnataka High Court passed a 129-page order  in Reshma v. State of Karnataka on March 15, 2022 upholding  the Government Order dated February 5, 2022 restricting pre-university students from wearing head scarfs (hijabs) or head covering to school. The petitioners had challenged the Order on the grounds that wearing a hijab is an ‘essential religious practice’ in Islam and therefore the insistence on its removal in educational institutions is violative of the fundamental right to freedom of conscience and the right to practice one’s religion under Article 25 of the Constitution. The petitioners also contended that the Order violates Article 19(1)(a) as one’s choice of dressing is a form of expression. Additionally, how one dresses is a matter of personal choice and is protected under privacy jurisprudence under Article 21 of the Constitution.  Lastly, the petitioners contended that a restriction on wearing of hijabs amounted to gender based discriminated and violated the students’ right to education since entry into schools was conditioned on the removal of hijabs. A fresh appeal has been filed before the Supreme Court against the Karnataka High Court judgment. The Court has refused to hear the appeals on an urgent basis and said that they will be heard in due time. 

After hearing the arguments from the petitioners as well as the respondents, the Court framed three questions of importance. This explainer aims to critically analyze the decision of the Court on each of the issues

Whether wearing the hijab is an ‘essential religious practice’ and therefore protected under Article 25 of the Constitution?

The Court held that while the Constitution guarantees the right to practice one’s religion under Article 25, it is not absolute and subject to restrictions imposed by the State on the grounds of public order, health and morality [Article25(1)]. Unlike other constitutions such as that of Australia and the United States, which grant the freedom of religion in absolute terms, the Constitution of India embodies limits on that freedom. In order for a religious practice to be insulated from restrictions imposed by the State, it must be an essential and integral part of the religion.. Citing Indian Young Lawyers Association v. State of Kerala, the Court reiterated that in order for a practice to be essential to a religion, (i) it must be fundamental to the religion, (ii) its foundation must precede the religion itself or should be co-founded at the religion’s origin, (iii) it must form a cornerstone of the religion, and (iv) it must be binding in nature (pg. 55). The Court analyzed Quranic verses and arrived at the conclusion that the Quran does not mandate the wearing of a hijab by Muslim women since there is no prescription of penalty for not wearing a hijab. At most, the Court held, wearing a hijab “is a means to gain access to public places and not a religious end in itself” (pg. 66). It held that while elements of religion might have permeated into the practice of wearing a hijab, that per se does not render the practice predominantly religious or essential to the Islamic faith. The Court also undertook an analysis of judgements by other High Courts on whether the hijab is essential to the Islam faith to arrive at its conclusion. Next, the Court examined whether wearing a hijab is a matter of conscience protected under the freedom of conscience under Article 25. It held that since conscience is subjective, the petitioners cannot claim that wearing a hijab is an overt act of conscience without giving concrete reasons showing how they developed the conscience and how not wearing a hijab will offend it (pg. 80). 

The essential religious practice test has been criticized by legal commentators for a multiplicity of reasons. It forces judges to become ecclesiastical authorities and adjudge what is essential to a particular religion, something which they have neither the competence nor the legitimacy to do. By forcing claimants to prove that a practice followed by them is essential to the religion, the test devalues the different, often personal, ways in which people practice religion and elevates ‘essential’ socially sanctioned practices as the only ones deserving constitutional protection. Simply put, if a woman feels wearing a hijab is essential to how she practices Islam, what gives the Court the right to rule otherwise?

Whether prescription of a school uniform violates, inter alia, the petitioners’ right to freedom of expression and the right to privacy under Articles 19(1)(a) and 21 of the Constitution respectively?

While the Court accepted that dressing is an ‘expression’ protected under Article 19(1)(a), as was recognized in NALSA v. Union of India, and an important facet of one’s autonomy, it held that the complaints of the petitioners does not involve the core of these “substantive rights,” i.e., the right to freedom of expression and the right to privacy (pg. 99). Instead, it took the view that the right to choose one’s dress is a “derivative right” and does not warrant the application of the four-pronged proportionality test. Even if substantive rights were being impacted, the fact that schools are “qualified public spaces”’ means the threshold for restricting these rights would be much lower than in private spaces. This is because spaces like schools, courts, war rooms, etc., by their very nature, “repel the assertion of individual rights to the detriment of their general discipline and decorum. Even the substantive rights metamorphose into a kind of derivative rights in such places” (pg. 100). In order to drive its point home, the Court gave the example of an under trial detenue, who enjoys inferior rights than a free citizen by virtue of being in a public space.

Critics have pointed out that the distinction made between substantive and derivative rights within fundamental rights is unprecedented. The Court has not adequately justified why restrictions on substantive rights should not meet the standards of reasonability and proportionality. Similarly, the Court has not clearly defined what constitutes a “quasi-public space.” By giving seemingly disparate examples of such spaces (schools, courts, war rooms, etc.), the Court has not sufficiently defined the category of a quasi-public space where substantive rights devolve into derivative rights. Is the character of a school fundamentally similar to that of a prison or a war room? If yes, why? The Court did not answer these questions adequately.  

•  On Reasonable Accommodation

In response to the petitioners’ argument that Muslim women be allowed to wear a hijab in a color that matches that of the school uniform in accordance to the principle of reasonable accommodation, the Court held that the school uniform will cease to be uniform in such a case. It would create two categories of girl students: those who wear a uniform with a hijab and those without. This, according to the Court, would create social separateness and offend the ideals of egalitarianism (pg. 107). Any non-uniformity in the matter of uniforms would defeat the entire object of prescribing uniforms. However, as critics have pointed out, any reasonable accommodation, by its very nature, would deviate from uniformity. The doctrine of reasonable accommodation, according to Gautam Bhatia, assumes the existence of a default uniformity, and argues that the default is insufficiently accommodating of a diverse and plural society. Therefore, what the Court needs to determine is whether the accommodation would destroy the very purpose for which the default rule exists in the very first place, which is education in this case. The Court treats education and uniform as one in the same instead of looking at uniform as a mere instrument towards achieving the goal of imparting an inclusive and proper education. The same can be achieved even without mandating complete uniformity in all aspects. 

•  On Indirect Discrimination

The Court also casually dismissed the petitioners’ contention that the restriction on the wearing of hijabs was discriminatory or arbitrary and therefore Articles 14 and 15 cannot be said to be violated since “the dress code is equally applicable to all the students, regardless of religion, language, gender or the like” (pg. 100). The Court here fails to appreciate the argument that the Government Order indirectly discriminates against Muslim girls, which is prohibited under Article 15(1) of the Constitution. Instead, it merely looked at the language of the Order to rule that is equally applicable to all students. Non-discrimination law requires that it is not enough that the law is facially neutral: the practical effects of its application must also not be discriminatory. The Order, in its application, disproportionately impacts Muslim girls and is therefore violative of Article 15 of the Constitution.

Whether the Government Order issued on February 5, 2022 prescribing a dress code in educational institutions is valid?

In its Order, the Karnataka Government had invoked a catena of cases in favor of a uniform dress code. It was contention of the petitioners that the Order suffered from material irregularity because the decisions of various High Courts cited did not lay down the ratio that the Government claimed they did. The Court held that regardless of the ratio of the decisions cited, the Order would remain valid if it is otherwise sustainable in law. 

The petitioners had also contended that the Karnataka Education Act, 1983 does not empower the Government to prescribe a uniform and that prescribing a dress code in a school is a matter of “police power,” which does not avail either to the government or to the schools in the absence of statutory enablement. The Court held that under Section 133(2) of the Act, 1983, the Government is empowered to issue directions any directions to give effect to the purposes of the Act (including its provisions and any Rules made thereunder) which, inter alia, is to cultivate a scientific and secular outlook within students through education (pg. 114). This, according to the Court, includes the authority to prescribe a school dress code. Moreover, Rule 11 of the Karnataka Educational Institutions (Classification, Regulation and Prescription of Curricula, etc.) Rules, 1995 itself provides for the prescription of a school uniform and its modalities (pg. 115). With respect to the petitioners’ claim that the prescribing a dress code is a matter of “police power”, the Court dismissed it for being too far-fetched (pg. 90). There was also not enough material adduced in support of the same .

Further Reading:

1. Gautam Bhatia, Between Agency and Compulsion: On the Karnataka High Court’s Hijab Judgment, Indian Constitutional Law and Philosophy Blog (March 15, 2022). 
2. Noor Ameena, Why Karnataka HC’s hijab judgment merits a constitutional challenge and scrutiny, The Leaflet (March 29, 2022).
3. Arvind Narrain, Hijab row verdict: A grave constitutional wrong, Deccan Herald (March 18, 2022).
4. Apporva Mandhani, What is an ‘essential religious practice’, and why the hijab didn’t make the cut for Karnataka HC, The Print (March 21, 2022). 
5. Shahrukh Alam, Karnataka hijab row: Behind the urge to discipline, The Leaflet (February 21, 2022).
6. Farrah Ahmed et al., Hijab Ban in Educational Institutions: A Constitutional Assessment (Research Brief by Academicians), LiveLaw (March 20, 2022).
7. Mrityunjoy Roy, Listicle: Hijab Ban, Law and Other Things (February 16, 2022). 

Image Source: Soham Sen for The Print