Hijab-wearing Muslim women students in the Karnataka government-run Pre-University College in Udupi continue to be denied entry into their classrooms. They were forced to stand outside their classrooms as they were wearing hijabs. Media reports highlighted similar incidents in Pompei College in Mangaluru and the Government First Grade College at Koppa in Chikmagalur.
As recently as February 3, in Kundapura Government PU College, a day after more than 100 male students wore saffron scarves to register their protest against Muslim girls wearing headscarves inside classrooms, the college authorities shut the door and denied entry to girls in the hijab.
Notably, there is no violation of the Uniform Dress Codes of the college at this moment. But these actions were justified based on an oral direction of the college development committee president.
This barring decision is now also being justified as a measure to enforce a sense of uniformity or homogeneity in colleges, thus prohibiting religious symbols in educational spaces. This was done through a government order.
However, ‘the prohibition of a headscarf or a garment covering the head is not a violation of Article 25 of the constitution’ as per decisions of the high courts.
The power to prescribe appropriate uniforms rest with College Development Committees, or the board of management, in government colleges. If such uniform is not prescribed then the official notification says that students should ‘wear clothes that are in the interests of unity, equality, and public order.’
Private colleges are asked to ‘mandate a uniform decided upon by their board of management.’
However, are these actions constitutional? Do Muslim women have the fundamental right to wear the hijab? And if so can they exercise it in all public spaces? To what extent can this right be limited?
Moreover, are the actions of the pre-university colleges or the government order constitutionally justified?
Article 25 of the constitution is on the Freedom of conscience and free profession, practice and propagation of religion.
However, not all aspects of one’s religion is protected under the article. If one seeks to claim the protection of Article 25 for a particular religious practice, they would have to demonstrate that such a practice constitutes an essential part of a religion which is primarily to be ascertained with reference to the doctrines of that religion itself.
Essential practice indicates those practices that are fundamental to follow religious belief, without which, a religion will be no religion. This a test developed through a series of Supreme Court judgments. Several legal scholars have pointed out the various problems with this test.
Although problematic, the test is still valid law. However, even if a practice falls under Article 25, it is subject to public order, morality and health which often leads to conflict between religious practices and the state interest in the matter of public affairs or related secular activities.
The question of hijab being an essential religious practice, was considered by the Kerala high court in Amnah Bint Basheer vs Central Board of Secondary Education, wherein the prescribed dress code for All India Pre-Medical Entrance Test-2016, was challenged by petitioners. The rationale for prescribing dress code by the Board is to avoid malpractices in the examination.
The part of the dress code which was in conflict with wearing the hijab was:-
“a) Light clothes with half sleeves not having big buttons, brooch/badge, flower, etc., with Salwar/Trouser.”
The court looked into two aspects of the Sharia as sources of Islamic law: first, the Quran and second, the laws that are taken from the lifestyle and teachings of the Prophet Mohammed, called the Hadith. Relying on chapter 24, known as “The Light” in Verse 31 in Holy Quran, the court quoted the relevant portion:-
“And tell the believing women to lower their gaze and be modest, and to display of their adornment only that which is apparent, and to draw their veils over their bosoms, and not to reveal their adornment save to their own husbands or fathers or husbands’ fathers, or their sons or their husbands’ sons, or their brothers or their brothers’ sons or sisters’ sons, or their women, or their slaves, or male attendants who lack vigour, or children who know naught of women’s nakedness. And let them not stamp their feet so as to reveal what they hide of their adornment. And turn unto Allah together, O believers, so that ye may succeed.”
Subsequently, the court relied on chapter 33 of the Quran which holds:
“O Prophet, tell your wives and your daughters and the women of the believers to lower over them a portion of their jilbabs. That is more suitable that they will be known and not be harmed. And even Allah Forgiving and Merciful.”
After an analysis of a Hadith by Al-Thirmidi, the court held:
“Thus, the analysis of the Quranic injunctions and the Hadiths would show that it is a farz to cover the head and wear the long sleeved dress except face part and exposing the body otherwise is forbidden (haram). When farz is violated by any action opposite to farz that action becomes forbidden (haram). However, there is a possibility of having different views or opinions for the believers of the Islam based on ijithihad (independent reasoning). This Court is not discarding such views. The possibility of having different propositions is not a ground to deny the freedom, if such propositions have some foundation in the claim. As has been adverted above, the claim of the petitioners is well founded even though, a different view is possible. This Court is only expected to safeguard such freedom based on the Constitution in preference to giving a religious verdict.”
However, the court acknowledged the rationale of the Board to ensure transparency and credibility of the examinations and deployed the balancing of interests approach by allowing women invigilators to frisk such candidates including by removing scarf while honouring the religious obligation of candidates
This appears to be a sound application of the doctrine. Although this is of persuasive value to other high courts, including Karnataka, no other contrary judicial interpretation stands to counter this position.
Interestingly, the same judge of the Kerala high court had dismissed another petition by Muslim girl students, seeking to wear the hijab in a private unaided secondary school, allegedly in contravention of the dress code prescribed by the school authority.
The reasoning relied on the fundamental right of the private school to manage and administer an institution under Article 19, therefore granting it autonomy and protection from constitutional scrutiny.
The court held:
“The Court will, therefore, have to examine the matter on a totally different angle on the conflict between Fundamental Rights available to both. The Court has to examine the prioritization of competing Fundamental Rights in a larger legal principle on which legal system function in the absence of any Constitutional guidance in this regard. The Constitution itself envisage a Society where rights are balanced to subserve the larger interest of the Society.”
The Kerala high court then, based on the principle that “individual interest must yield to the larger public interest” went on to hold, that the petitioners cannot seek imposition of their individual right as against the larger right of the institution.
It is unclear from the judgment as to why the right to wear hijab is of lesser public interest than the autonomy of private unaided educational institutions. This articulation goes beyond the autonomy provided to minority education institutions under Article 30 of the constitution.
A combined reading of both the judgments leaves us with this position in law: that other than private unaided educational institutions, hijab can be exercised as fundamental right which can be limited for a narrow purpose. However, this position is problematic because it entirely exempts private unaided educational institutions from any kind of constitutional scrutiny with the exception of horizontal fundamental rights.
What both these judgments did not do, is to place the right to wear the hijab within the framework of the right to privacy.
Right to privacy
In Puttaswamy, a nine-judge bench of the Supreme Court upheld the right to privacy as a fundamental right.
The concept of privacy was discussed at length, with different judges having different formulations of it, often overlapping. The feature common to all understandings was that it meant ‘the right to be left alone’ or the freedom from unwanted intrusion by state or private actors. Justice Chandrachud writing for three other judges, stated:
“Privacy has distinct connotations including (i) spatial control; (ii) decisional autonomy; and (iii) informational control. Spatial control denotes the creation of private spaces. Decisional autonomy comprehends intimate personal choices such as those governing reproduction as well as choices expressed in public such as faith or modes of dress. Informational control empowers the individual to use privacy as a shield to retain personal control over information pertaining to the person.” [Emphasis author’s]
From this it is clear that expressions of faith and modes of dress fall within the purview of right to privacy. This argument appears to be on stronger footing than the ‘essential religious practice’ test under Article 25.
Again, this does not mean that the right to hijab within the framework of privacy is absolute. However, if the state or a private entity has to limit this right, it has to fulfil the three pronged test set out in Puttaswamy. First, that there must be a law in existence to justify an encroachment on privacy. Second, there is requirement of a need, in terms of a legitimate state aim. And finally, the means which are adopted by the legislature are proportional to the object and needs sought to be fulfilled by the law.
Proportionality is an essential facet of the guarantee against arbitrary state action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law.
For instance, the state or private school may for a particular narrow legitimate purpose, such as identification or to ensure cheating does not happen in examination, ask Muslim women to remove the hijab for a short period of time, just to fulfil that particular purpose. This is the standard the state must meet, in order to limit the right to hijab.
The Karnataka government’s order
The incidents reported in Karnataka have very little to do with a legitimate state interest.
As of today, neither the government order, nor any rule, stops Muslim women students from wearing the hijab and exercising their right to education simultaneously. It merely confers the power to prescribe appropriate uniform on College Development Committees, or the board of managements in colleges.
The rule or ‘dress code’ is non-existent as of today, yet Muslim women wearing hijab have been denied entry to their classes. Therefore, at a very basic level this fails the first test, of there being a law in existence to justify an encroachment on privacy.
The government order expresses an opinion on hijab not being an essential religious practice based on three judgments, first, by the Supreme Court in Asha Ranjan and ors. v/s state of Bihar and Ors., which had no particular finding on the hijab, but was used to justify balancing intra-fundamental rights, to support the contention that individual interest must yield to the larger public interest.
This is not relevant because fundamental rights are not being balanced here.
Second, it relies on a Bombay high court judgment which was about asserting the right to wear hijab, wherein the court held that the Right to Hijab under Article 25 would not be applicable in this particular case because the girl asserting the claim was studying in a section meant exclusively for girls.
Thirdly, the government order relies on a Madras high court judgement, which relates to a dress code for teachers, which was challenged, but not on the ground of Article 25 violation. It had nothing to do with the hijab.
Therefore, in short, none of the three judgments hold that hijab is not protected by Article 25. None of the three support the government order with regard to limiting the right to hijab based on in the ‘interests of unity, equality, and public order.’
This government seeks to empower College Development Committees and Boards of Management to perpetuate further discrimination against Muslim girl students by giving these authorities the power to decide uniforms after laying down a wrong interpretation of the courts.
The denial of entry into colleges by college authorities is an action bereft of any legality. By any standard of lawful action, the forcible prevention of girls from entering college without notice and without reason violates basic principles of rule of law.
All of this is very far from the very Indian ideal of ‘unity in diversity’ and is nothing other than an attack on fraternity and fraternal ways of living. While this controversy may pass, the government order will do permanent damage by legitimising unconstitutional interventions into the selfhood, identity, privacy and dignity of Muslim women.
When the College Development Committees are controlled by political forces, one can be quite sure that this power will be exercised not to curb the religious expression of the majority but only to stop the religious expression of the minority.
Mohammed Afeef is a practicing lawyer at the Alternative Law Forum.