Aishat Shifa

Versus
State of Karnataka SLP(c) 5236/2022

ABSTRACT
Keeping Muslim women wearing hijab out of classes is a classic case of
discrimination under the constitution's equality clauses. Utilizing auxiliary
examination of hypothetical texts, this article seeks to understand the concept of
Hijab in Islam and its recent controversy. Muslim women's participation in
education declines faster in the 15-20 year age category than in the entire
population (relative to the significantly younger five year age range). Women are
frequently targeted by religious restrictions all around the globe, as their dress is
often deemed too religious or not religious yet in several nations. These limits
typically take the form of person or group societal harassment, but they can also
include formal government acts. This paper also examines the violation of
Muslim's women fundamental rights to practice religion.
INTRODUCTION:
It is nothing new to us that India is a diverse nation. Diverse in such a way that it
often gets to see problems that are difficult to figure out whether it is a matter
arising out of diversification or a tug of war between two or more groups of people
with mollified intention to disrupt the harmony.
From the Shayara Bano case to eliminating the torturous triple talaq, things have
been difficult. This time it is the hijab row. ‘Purda system’ in India has been very
common for ages but is it okay to cover the rights of women along with their
faces? Is it okay that covering of head and face have to be given more importance
than education and awareness? And is it okay that men have to tell women about
their conduct instead of women themselves deciding what they want? In the hijab
row, various dimensions ranging from right to education, humanity to justice,
everything were brought to the ground of question.
WHAT IS HIJAB?

1
Hijab is derived from an Arabic word, which implies partition, and the woman who
wears a hijab is called Muhaajaba. The Quran instructs Muslim women and men to
dress modestly, and for some, the hijab is worn by Muslim girls and women to
maintain modesty and privacy from unrelated males. According to the
Encyclopedia of Islam and the Muslim World, However, there is nothing
mentioned in Quran as such that not wearing a hijab is an offence and against
Islamic practices. When we talk of the importance of the hijab which we must, as it
is the focal point of the whole case, different people have different points of view
over wearing the hijab. Someone say it is to show that the woman is pure and her
sanctity is intact, while others say that it is the command of Allah to wear a hijab.
It is even said that Hijab encourages modesty, both physically and spiritually.
When a woman covers her head as per Allah’s command, it is her way of showing
her belief in Allah and accepting all his commands. It makes the connection
between the Almighty and that woman stronger.
It all was start from December month of 2021 when the colleges in Karnataka
reopened after the pandemic seemed to be in control. Soon, after the college
reopened, six girls wore the hijab to their pre-university government college in
Udupi. After entering the classroom, the teachers asked them to take permission
from the principal upon wearing hijab in the classroom to which the principal
denied wearing hijab in classrooms as it was against the uniform protocol of the
institution and was already mentioned openly before the admissions. Where on one
hand the girls were not refrained from wearing hijabs on campus, on the other
hand, they were instructed to remove the hijab before entering the class. The
protest started soon demanding that wearing the hijab is a constitutional right and it
cannot be denied per se. The girls insisted that they would use the veil as a hijab so
that another separate garment is not added to the uniform and that will serve the
purpose. It was strange that no one wore a hijab to the college in the first year but
started digging in the heels of the authorities asking for the right to wear a hijab.
It didn’t take much longer for other colleges in the district to act against the
wearing of hijab in institutions. And the heat of the scenario was increasing every
day. What had happened over there just set the fire ablaze. A group of Hindu
students started coming to the institution with saffron scarves protesting against the
girls demanding to wear hijab. What they said was that if the hijab can be a part of
the uniform to represent their religion, then so can the saffron scarves.
In the first week of February, the government issued an order stating that the
uniforms mandated by the state government, the school management, or college
2
development committees must be worn compulsorily. And for those colleges
which do not have separate guidelines for uniforms, the court ordered that the
students must wear clothes that do not hamper public order, equality, and unity. In
this flow of events, multiple institutions including high schools and colleges were
shut till further notice to abstain from the chaos that was being created and to put a
stop to violent acts that could possibly take place. Meanwhile, On February 10th, a
girl named Muskan Khan was threatened by a group of boys while she was present
on the college premises. She was wearing a burqa and heading to the college
wherein a group of male Hindu students who carried saffron shawls across their
shoulders started chanting “Jai Shri Ram” and the girl, in turn, started yelling “All
ahu Akbar”. Amidst this, the college administration tried to calm the situation and
made sure of the girl’s safety by escorting her into the building. A video of the said
incident also went viral over social media which further brought this hijab case into
the limelight.
Knocking at the gate of the courts:
At first, two petitions were filed in the High Court of Karnataka
Firstly a group of students from Udupi PU College filed a writ petition on 31st
January seeking that wearing of hijab is a Fundamental Right under Article 14 and
Article 25 of the Constitution of India.
Whereas the second petition was filed by a single student in the first week of
February who was seeking a directive to permit the wearing of hijab in schools and
colleges at the soonest.
When the matters were being heard in the court by Justice Krishna S. Dixit, he
pointed out that the main issue was not whether a hijab can be worn in institutions,
but the issue was whether wearing a hijab is an essential Islamic practice and to
decide the same at least three judges bench was required. Meanwhile, many more
cases relating to the same scenario were filed in the High Court. Once the three
judges bench sat for the proceeding and an interim order was passed that required
all the schools and colleges to reopen and the students need not wear any kind of
religious symbols or garments to school till further order. In the not so long run
battle, the High Court passed an order upholding the ban on hijab by the
educational institutions on 15th March 2022 and the court held that wearing
wearing hijab is not an essential religious practice that Islam suggests and hence it
will not come under the protection of Article 25 of the Indian constitution. This

3
decision of the court was backed by its own investigation by referring to the Holy
Quran: Text, Translation, and Commentary by Abdul ali and is to be noted that the
same source was referred to in the Shayara Bano case. As soon as the Karnataka
High Court upheld the ban on religious clothes and ruled that hijab is not an
essential religious practice directed by Islam, the petitioners moved up to the
Supreme Court wanting to list the matter for urgent hearing;
The Supreme Court over which said-{‘do not sensitize’ and rejected
the plea for urgent hearing.}

SUPREME COURT VERDICT ON-

The Supreme Court passed a split verdict on a batch of appeals challenging
restriction on Muslim girl students wearing Hijab in educational institutions in
Karnataka.
Justice Hemant Gupta:
Justice Hemant Gupta dismissed the 26 appeals filed against the judgment of the
Karnataka High Court which held that hijab was not an essential practice of Islam
and allowed the ban on wearing headscarf in educational institutions in the State.
Justice Sudhanshu Dhulia:
Expressing the divergence in his opinion, Justice Sudhanshu Dhulia set aside the
Karnataka High Court judgment and held that the entire concept of essential
religious practice was not essential to the dispute.
"The High Court took a wrong path. It is ultimately a matter of choice and Article
19(1) (a) and 25(1). It is a matter of choice, nothing more and nothing less," he
said.
Justice Dhulia:
Stated that,
Justice Dhulia said that the foremost question on his mind was the education of the
girl child. "Are we making her life any better? That was a question in my mind...I
have quashed the Government Order of February 5 and have ordered the removal
of the restrictions...I have held that the judgment in Bijoe Emmanuel squarely
covers the issue."
4
"The main thrust of my judgment is that this entire concept of essential religious
practices, in my opinion, was not essential to the disposal of the dispute. And the
Court probably took a wrong path there. It was simply a question of Article 19(1)
(a) and 25(1). It is ultimately a matter of choice. Nothing more, nothing less. I have
also held the ratio laid down by the Supreme Court in the case of Bijoe Emmanuel
squarely covers the issue. The thing which was uppermost in mind was the
education of girl child. It is a common knowledge that a girl child primarily in
rural and semi-rural areas has a lot of difficulties, they have to do daily chores
before she goes to school. There are other difficulties as well. Are we making her
life any better? That was also a question in my mind".
Justice Gupta on the other hand had framed 11 issues and answered all the
questions against the appeals. In light of the divergence of opinion, the matter has
to be placed before the Chief Justice of India for appropriate directions. Detailed
copy of the judgment is awaited. The bench had reserved the judgment on
September 22 after hearing arguments for ten days. Senior Advocates Dr.Rajeev
Dhavan, Kapil Sibal, Dushyant Dave, Huzefa Ahmadi, Sanjay Hegde, Salman
Khurshid, Devadatt Kamat, Yusuf Mucchala, AM Dhar, Adithya Sondhi, Jayna
Kothari, Colin Gonsalves, Meenakshi Arora, Advocates Prashant Bhushan, Nizam
Pasha, Shoeb Alam etc., made arguments for the petitioners. Solicitor General of
India Tushar Mehta and Attorney General of Karnataka Prabhuling Navadgi
appeared for the State defending the High Court verdict. Senior Advocates R
Venkataramani, Dama Seshadri Naidu, and V Mohana made arguments for
College Development Committees/Teachers in support of the hijab ban.
Some of the issues which arose during the hearing are:
1. Whether the matter has to be referred to larger bench in view of the
pendency of the Sabarimala reference?
2. Whether hijab is an essential religious practice in Islam?
3. Whether it is necessary to establish that hijab is an is an essential religious
practice to seek the protection of Article 25?
4. Whether the right to wear hijab can be claimed as part of freedom of
expression under Article 19(1) (a) and part of right to privacy and dignity
under Article 21?
5. Whether the February 5 Government Order can be justified on the grounds
of reasonable restrictions under Article 19(2)?

5
 6. Whether the wearing of hijab can be prohibited on the ground that certain
other groups started protesting by wearing saffron shawls? Whether such a
restriction amount to succumbing to hecklers veto?
7. Whether there is any legitimate state interest in imposing a restriction which
will lead to the deprivation of education for Muslim girls, who are already
facing social backwardness?
8. Whether the wearing of headscarf of the some colour of the prescribed
uniform dress can be allowed on the principle of reasonable
accommodation?
9. Whether there is any fundamental right to wear a religious dress in a
classroom where a uniform has been prescribed for all students?
10.Whether prescription of a uniform in an educational institution can be held
to an unreasonable restriction?
During the arguments, the State told the Court that there was no established
practice of wearing hijab by Muslim girls students and that the protests were
coordinated by the Campus Front of India and the Popular Front of India.
CONCLUSION:
This entire hijab row was a tug of war between sentiments. While hijab for some is
just a piece of cloth that brings inequality and eliminates uniformity, for others, it
is their identity and what distinguishes them from others that they feel to be
important. The legal system, however, eliminates sentiments and works according
to the law of equity, justice, and a good conscience and of course, the laid down
statutes and provisions to meet the ends of justice. In this diverse nation with a
humungous population, religion, and culture, it is bound to happen that some
decisions might be liked by a certain sect and disliked by the other at the same
time. However, what actually did suffer and became a joke was education among
everything else. The students continuously missed their classes during the protest
and even skipped examinations as the judgment was not in their favors. An ugly
side of humanity was also reflected when the judges of the Karnataka High Court
namely, Chief Justice Ritu Raj Awasthi, Justice Dixit, and Justice Khazi Jaibunnisa
Mohiuddin who were taking up the matter were given threats of life after they
upheld the ban on religious clothes and ruled that hijab is not an essential religious
practice directed by Islam. Wherefore, they were given Y+ Security. There have
been and will be cases and instances coming up that satisfy a particular sect and
works the opposite for the other but what should always be served is justice.