INTRODUCTION
Aishat Shifa v. State of Karnataka (2022), widely known as the Hijab Ban case, is a significant case involving the controversial debate surrounding religious freedom, educational policy, and constitutional rights in India. The issue here is set in the state of Karnataka, India, which restricted the wearing of hijabs in educational institutions through its directive order. This case brought widespread public attention across the country and the further legal battle captured the wider ambit of the problem by bringing attention to the debate of individual rights/choices to express religiously and a state’s authority to regulate dress codes in educational institutions. The case questioned the interplay between secularism, individual rights, and state policies, therein, this case stood tall concerning the understanding of the scope of religious freedom and the limits of state intervention in matters of personal beliefs.
FACTS
The background of the case started with the order dated February 5th, 2022, issued by the Karnataka government, which in its order stated that students enrolled in public/state-run educational institutions ought to adhere to and follow the prescribed dress code/uniforms. The order further stated that the exception of wearing religious attire such as hijabs is completely restricted.
In that context, the actual legal issue began when a Muslim student from a college in Udupi was denied access to enter her classroom, owing to the fact that she was wearing a Hijab. Given the government order, the management of the college put forth the argument that wearing hijabs was against the institute’s dress code/uniform policy. Amid this, the girls came up with an alternate solution, they would use the mandated uniform’s dupatta to cover their heads. However, the college’s management failed to compromise for it and rejected the same request, which in turn resulted in the students being excluded from attending classes for such reasons. Similar instances occurred in various public institutions, with students protesting against the ban on religious attire across the state and students started advocating for their right to wear religious attire.
On the other hand, the government gave an explanation legitimizing the order, that when Section 133 of the Karnataka Education Act, 1983 is applied it grants the state government the power to issue directions to maintain discipline and promote a secular environment in educational institutions. The order reads that promoting mandatory uniforms is to foster equality and maintain the same among the students. The opposers made a reasonable claim that it infringed on the fundamental rights guaranteed by the Indian constitution in relation to the right to religious expression, personal liberty, and equality.
Following this, the Karnataka HC, ruled in favour of the state government’s order, that “wearing a hijab is not an essential religious practice” under Islamic principles or beliefs and owing to which the policy mandated a uniform does not violate the constitutional rights of the students. Aggrieved by this decision, the petitioners filed an appeal before the Supreme Court of India, questioning Karnataka HC’s decision and its constitutional validity.
ISSUES RAISED
- Whether wearing of hijab constitute an essential religious practice of the Islamic principles, that is safeguarded within the ambit of Article 25 of the Indian Constitution?
- Whether the direction of mandating the uniform dress code policy in educational institutions and making in adhering to violate fundamental rights under Articles 19(1)(a) and 21?
- Whether, the direction issued by the Karnataka government, was legitimate, or was it arbitrary by violating Articles 14 and 15 of the Constitution?
ARGUMENTS
Appellant’s Arguments
The appellant put forth their major arguments that wearing of Hijab is in reality an essential religious practice as per the beliefs of the Islamic faith, and ought to be protected under the ambit of Article 25 of the Indian Constitution. Therefore, the direction of the Karnataka state government is in direct violation of the right to religious freedom and expression as specified in the above article.
They also contended that the choice of wearing personal attire, even if it is religious attire is within the scope of “freedom of speech and expression” as stated in Article 19(1)(a) and “right to privacy” under Article 21 of the constitution. The contention is that wearing a hijab is a personal religious choice made by a student, and does not directly harm any interest of the public, therefore, this direction is in direct violation of the mentioned rights.
Further, the appellant claimed that the state government’s order was majorly arbitrary in nature and did not align with the constitutional principle of proportionality. This was argued with the fact that the Karnataka State Education Act, 1983, gave only the right to issue directions, but not in the nature of the imposition of dress code/uniform policy nor did the University Development Committee under the UGC have such authority to impose those mandate directions.
Most importantly, they contented that restricting and banning women from wearing hijab, directly infringes on the autonomy women have to express themselves and directly results in gender-based discrimination. This violation of rights results in being contradictory to “equality before the law” under Article 14 and Article 15.
In the end, the denying of access to entry into classrooms, based on their attire is a violation of the right to education, which is contrary to the International Convention, Convention on the Rights of the Child. Upon which they advocated for the need for the protection and empowerment of women’s rights. Following this, the appellants demanded disciplinary action against the management of the institutions that denied such entry and mandated the ban of hijab.
Respondent’s Arguments
On the other hand, the respondents argued that the wearing of hijab is not an essential religious practice in the beliefs of Islam as it is not specifically mentioned or mandated in the Quaran, the holy book of Islam. Owing to this, they stated that the restriction does not violate Article 25 of the Constitution.
The Karnataka government argued that the authority to stipulate uniform policy is essential when it comes to administering educational institutions. Further, they stated that the government’s order only established the mandate of uniform policy of their own to be followed by educational institutions, but did not lay down one dress code directly.
When arguing about the violation of fundamental rights under Articles 25 and 19(1)(a), they state that these rights are subject to “reasonable restrictions”. Therefore, the wearing of hijab in an educational institution can be reasonably regulated/restricted to ensure essential discipline within the institution. Therein, the appellant argument of violation of this article was conflicting.
Their last major claim was that they tried to make clear that the order did not target a particular religious group but was neutral and secular. Also, the hijab being worn within the institution ought to violate human dignity and personal choice, which again is contradictory to the constitutional principles.
JUDGEMENT
The judgement was issued on 13th October 2022, wherein a split verdict was issued that, Hon’ble Justice Hemant Gupta upheld the ban on wearing a hijab as valid and that it was not against the principles of secularism. On the other hand, Hon’ble Justice Sudhanshu Shulia held the ban on hijab unconstitutional and the Karnataka government’s order is violative of constitutional provisions. The split verdict referred the case to a larger bench for further consideration.
