The controversy began on December 28, 2021, after six students were denied entry at the Pre-University College in Udupi on account of wearing hijabs with their school uniforms. Prolonged protests after this incident, coupled with a simmering communal atmosphere prompted the Karnataka state government to suspend classes for three days at all educational institutions.
Adding fuel to fire, on February 5, 2022, the Karnataka Education Department said that “clothes which disturb equality, integrity and public law and order should not be worn.”
Hijabs v. Saffron Shawls: The Debate India Should’ve Never Had
When this matter reached a single-judge bench of the Karnataka High Court, it was referred to a larger bench given that ‘constitutional questions of seminal importance’ have been raised in the matter.
On February 11, 2022, the three-judge bench requested the State government to reopen educational institutions at the earliest, and restrained students “regardless of their religion or faith from wearing saffron shawls (bhagwa), and connected matters scarfs, hijab, religious flags or the like within the classroom.”
The developments so far have made it clear that the right to education and the freedom to practice and propagate religion have been pitted against each other, and unfairly so – this ‘manufactured controversy’ has confined girls and women seeking education to their homes because they wish to wear hijabs.
Through this piece, I briefly look at possible approaches towards the recent happenings and argue that ‘public order’ considerations have been placed on a towering pedestal despite the priorities at hand being significantly different.
What The Constitution And Laws Say In This Regard
There are several approaches through which the present debate can be looked at: one, through the lens of Article 25 of the Constitution that confers the ‘freedom of conscience, and free profession, practice, and propagation of religion’; two, by viewing clothes as symbols of speech and expression under Article 19(1)(a) of the Constitution; three, by examining the scope of positive secularism in India as acknowledging multi-faceted ethnicities and cultures, and how the same links to non-discrimination.
The Article 25 discussion is linked to the Essential Religious Practices (‘ERP’) test which entails that only practices that are ‘essential and integral’ to a particular religion are qualified to receive relevant constitutional protection.
In his article titled ‘Essential Practices Doctrine’: Towards an Inevitable Burial’, Dr Anup Surendranath notes how the doctrine that emerged through Justice Gajendragadkar’s opinion in Durgah Committee Ajmer v. Syed Hussain Ali (1961) – in this form, the doctrine required courts to determine not only whether/not the practice in question was religious, but also whether/not it was an essential part of the religion.
This approach was further narrowed down in Commissioner of Police v. Acharya Jagadishwarananda Avadhuta (2004) wherein the Supreme Court recognized that an essential practice is one ‘without which a religion will be no religion’.
The above-mentioned cases have been followed by a flurry of judicial developments where courts have had to inevitably scrutinize religious texts and sources in order to determine whether/not different practices are ‘essential’ in nature.
In fact, while hearing the matter on the hijab ban, the Karnataka High Court went to the extent of asking whether each tenet mentioned in the Quran is an essential practice.
This approach demonstrates how the conversation is not so much about how Muslim women’s access to education has been hampered by arbitrary State action, but about what does or does not form an essential practice of Islam. This, to me, highlights the misplaced priorities of the State and the judiciary.
In NALSA v. Union of India (2014), the Supreme Court pertinently recognized that “the freedom of expression guaranteed under Article 19(1)(a) includes the freedom to express one’s chosen gender identity through varied ways and means by way of expression, speech, mannerism, clothing etc.”
We may also refer to a South African court’s judgment in D.A. v. Governing Body, the Settlers High School (2002) wherein it was noted expressly that “The freedom of expression is extended to forms of outward expression as seen in clothing selection and hairstyles.”
The Admission Guidelines 2021-22 of the Department of Pre-University Education mention not just the fact that uniforms are not mandatory, but also that making uniforms mandatory constitutes a serious violation.
It was only amid the controversy that the state government thought it necessary to prescribe uniform dress codes in schools and colleges by relying on section 133(2) of the Karnataka Education Act, 1983. In essence, a minority community’s expression and assertion of religious affiliation by wearing hijabs are unnecessarily sought to be linked to questions of ‘public order’ and ‘peace and tranquility’.
Concluding Remarks
Religious polarization through political intervention has made matters worse in Karnataka. Frequent communal flare-ups by inciting radical groups have been the thriving force behind hate politics for years, and the present situation is no different.
However, one must not lose sight of the real question that remains unanswered in all this noise – can the right to education be interfered with on the mere grounds that an individual exercises their freedom to wear a symbol of religious affiliation, a practice that members of their community have been following since generations?
That this practice has been ‘sincerely held’ by members of the community does not seem to be a sufficient enough reason to prevent a compromise of Muslim women’s right to education. Any approach that the Karnataka High Court takes to address different constitutional considerations should balance the fundamental rights of education and religious expression, rather than overly concerning itself with overbroad restrictions on vaguely termed grounds such as ‘public order’.