To Hijab or Not: The Constitutional Question

The recent protests in Karnataka against the ban on Hijab in certain educational institutions have once again brought into sharp focus a person’s right to religious freedom and the restrictions that the State can place on it.

What is the controversy about?

The controversy started in the Udupi district of Karnataka when a Government Women’s College denied entry to 6 Muslim girls because they were wearing the Hijab, a head scarf worn by some Muslim women. The college stated that wearing the Hijab was against its prescribed uniform rules for students.The girls refused to stop wearing the Hijab and  were made to sit outside their classrooms for more than a month. This led to widespread protests in Karnataka, both in favour and against the Hijab ban. Since then, many other colleges in Karnataka have banned the wearing of the Hijab in classrooms. Several cases have been filed in the Karnataka High Court challenging this Hijab ban. 

Recently, the School Education Department of Karnataka tried to clarify the issue and said that all government schools should follow the uniform dress code declared by the state government and students from private institutions should follow the dress decided by the school management. It also said that where there is no such dress code, students could wear clothes that would not affect equality, integrity and law & order. Even though this notification does not specifically mention the word “Hijab”, one can assume it is intended to give legal backing to the colleges trying to enforce the Hijab ban. 

What does the Indian Constitution say?

Article 25 of the Constitution grants the freedom to all persons to practice their religion, subject to the restrictions of public order, morality and health. Article 19(1)(a) gives the freedom of speech and expression to all citizens, subject to certain reasonable restrictions which include public order, decency and morality. Freedom of speech and expression includes the clothes a person wears, as it is considered a form of self-expression. Article 14 of the Constitution ensures equality before the law and prohibits discrimination based on religion. 

These three fundamental rights form the bulwark of a person’s right to practice the religion of their choice, in a manner of their choice, wearing the clothes of their choice, without fear of discrimination. Considering these fundamental freedoms, the Muslim students’ right to wear the Hijab as a manner of practising their religion and a way of expressing themselves is protected by law. he actions of the colleges discriminate against them by denying them entry to the college.

The legally-recognised restrictions to these rights are public order, morality, health and decency, amongst others. However, wearing of the Hijab cannot be said to affect either public order, morality, health or decency. The Karnataka High Court has to consider whether the ban on the wearing of the Hijab is a reasonablerestriction of the freedom of religion, or whether this Hijab ban is unconstitutional and discriminatory. 

What is the status of the cases before the Karnataka High Court?

On February 9, 2022, the cases against the Hijab ban and the Karnataka Government’s order, were heard by a Single Judge of the Karnataka High Court. However, since constitutional questions were involved, it was sent to be heard by a larger bench. A 3-judge bench has been set up to hear the cases now. 

On 10 February 2022, the Bench decided to look into the matter further on Monday, 14 February 2022. During this interim period, the Bench has directed colleges to be open and restrained wearing religious items till the case is decided.