Indian Journal of Law and Legal Research Volume IV Issue I | ISSN: 2582-8878

THE HIJAB ROW: A CASE STUDY OF KARNATAKA

Shashwata Sahu, LL.M., KIIT School of Law

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.

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Indian Journal of Law and Legal Research Volume IV Issue I | ISSN: 2582-8878

Introduction

“Freedom prospers when Religion is vibrant and the Rule of Law under God is acknowledged.”

- Ronald Reagan (40th President of the USA)1

The Arabic word hijab means "barrier" or "partition." Nonetheless, it has a broader definition
in Islam. This is a concept of modesty that encompasses both male and female behaviors and
dress. The head covering worn by many Muslim women seems to be the most prominent kind
of Hijab. The Hijab is a head covering that wraps a woman's hair, neck, even shoulders and
chest in some instances.

The three most prominent kinds of head scarf for Muslim women are the burqa, niqab, and
Hijab, were all heavily influenced by their religion. The wearing of the Hijab appears to be
more prevalent in the southern states. Throughout India, about two-thirds of Muslim lady wear
the burqa. Women that wear headscarves in public aren't just Muslim women. While stepping
out of their house, Hindus, Shikhs, Christians, Buddhist women also cover their heads with
cloth. These are all examples of a patriarchal society because women cover their heads as a
result of gender-based fear. But in terms of freedom of movement in India, Muslim women
have the lowest status.

Background of the issue

Six Muslim girls were denied admission to a college in Karnataka because they wore hijabs to
class. This sparked a nationwide debate about the Hijab controversy, which raised a number of
questions. Like -

● Is wearing religious symbols in public settings a violation of India's secularism?

● Is it a requirement of Islam to wear a hijab or head scarf?

● Is it possible to deny the right to education just on the premise of achieving uniformity?

These issues mark a watershed moment in the independent India's legal history. Articles 192,
21A, 253, and other essential constitutional provisions are involved. In fact, these issues have

1
https://www.whitehouse.gov/about-the-white-house/presidents/ronald-reagan/
2
https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2019
3
https://indiankanoon.org/doc/631708/#:~:text=25.,profess%2C%20practise%20and%20propagate%20religion

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Indian Journal of Law and Legal Research Volume IV Issue I | ISSN: 2582-8878

sparked a nationwide debate today. As the nation watches to see if the Hijab controversy
evolves like another Shah Bano moment, this paper summarizes the situation by posing three
key questions.

Is the Hijab Ban a Violation of Muslim Women's Fundamental Rights?

A Hijab prohibition judgment by a pre-university institution in Udupi, Karnataka, sparked the

current Hijab controversy. Equivalent demands for the abolishment of the Hijab were made in
plenty of other districts' educational institutions as well. This wave may jeopardise Muslim
women's fundamental rights. Wearing the Hijab is a vital part of the Islamic belief. As a result,
this restriction, first and foremost, contradicts the Constitution's Article 25(1). The freedom to
freely profess, practise, and promote one's religion is protected by this article.

Women already have a disadvantage in terms of literacy and labour force participation.
Furthermore, the Covid-19 shutdown has resulted in significant learning deficits. Making a
decision between education and identity in this circumstance is not only unfair, but it also
breaches the fundamental right to education under Article 21A4.

Furthermore, the judgement in "Justice K.S.Puttaswamy v. UOI (2017)" 5explicitly

establishes that choices made in public, such as faith or clothing, are part of the fundamental
right to privacy. As a result, prohibiting the manifestation of one's faith or way of dress
breaches both the fundamental right to freedom of expression under Article-19(1) and the right
to privacy under Article 21. Finally, the Hijab dispute calls into question Article 14's right to
equality6, as Sikh turbans, Christian crosses, and Hindu necklaces are permitted to be worn
freely.

These matters are currently being investigated by a Karnataka High Court panel led by Chief
Justice Ritu Raj Awasthi. Senior counsel Devdatt Kamat is assisting the applicants in the High
Court of Karnataka in this Hijab row matter. He has emphasised the positive aspects of Indian
secularism, which is based on the principle of "Sarva Dharma Sambhava" (equal respect to all
religions for peaceful co-existence)".

4
https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2021A
5
https://indiankanoon.org/doc/91938676/
6
https://www.legalserviceindia.com/legal/article-7910-detailed-analysis-of-equality-before-law.html

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The Essentiality Test: Is wearing the Hijab a fundamental Islamic practice?

The essentiality test, which is used to determine the genuineness and character of religious and
belief freedom, is severely flawed. Our court system is not a theological authority when it
comes to evaluating whether or not a practice is "integral" to a religion. A prominent scholar
on freedom on freedom of religion, Prof. Faizan Mustafa, has argued that the test “impinges
on individual freedom and gives too much power to the courts in matters of religion. In effect,
it elevates the judiciary to the status of clergy.” 7

Furthermore, the test is of a broad nature, ignoring how vital and integral a practice is to one's
faith and conscience. Instead, it considers how important the practice is to the religion as a
whole, drawing on traditions and literature. Individual liberty and agency are not taken into
account. This framework is diametrically opposed to how rights should be regarded, as it places
the individual at the centerpiece of the discussion. As Charles Fried puts it - “Individuals come
first. Whoever says otherwise is trading in metaphors. There are societies, nations, families,
teams, but they are all made up of individual persons.” 8

Three elements must be addressed in order to answer the question of whether wearing a Hijab
is a necessary practice or not. They are as follows -

(a) What does it mean to have an essential practice?

Much of the legal and nonjudicial discourse on the topic appears to be centred on essentiality,
a doctrine formulated by the Apex Court in 1954 by the Shirur Mutt judgement9. The Supreme
Court held that "Article 25, which guarantees freedom of religion and conscience, covers all
rituals and practices that are integral to the religion".

In the judgment of "Commissioner of Police v. Acharya Jagdishwaranand Avadhuta

(2004)"10, the apex court of India defined it precisely. The essentiality test, according to the
Hon'ble Court, is "Test to determine whether a part or practice is essential to the religion - to
find out whether the nature of religion will be changed without that part or practice".

7
Freedom of Religion in India, 2017
8
Modern Liberty, 2007
9
https://indiankanoon.org/doc/1430396/
10
https://indiankanoon.org/doc/1723440/

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Wearing a hijab should really be regarded as a fundamental Islamic activity based on this
concept. Hijabs have been a part of Muslim women's culture for centuries. Its importance in
Islam is also described inside the Holy Qur'an (Verses 24.31 and 33.59).

(b) What have been the previous court rulings on the Hijab controversy?

In the case of "Amnah Bint Basheer and Anr. vs. Central Board of Secondary Education
(CBSE) 2016"11, the Kerala High Court recognised Hijab as an essential Islamic practice. The
decision came in response to CBSE's clothing code for the All India Pre-Medical Tests. The
dress requirement was implemented to combat the widespread habit of exam cheating. These
restrictions, however, made it illegal for Muslim women to wear the Hijab in examination
rooms. In this decision, the Honorable High Court recognised that Muslim female's wearing of
the Hijab is an important practise and that female should be allowed to do so.

(c) What does international law say about the practice of wearing the Hijab?

The "International Covenant on Civil and Political Rights" 12(hereinafter ICCPR), is included
in the "International Bill of Human Rights". There are two extremely important articles of the
ICCPR that are present in the topic of women's freedom to wear the hijab.

"Firstly, Article 2(1) of the ICCPR specifically requires states parties to respect and ensure
rights to all without distinction of any kind including religious, political, or other opinion."
"Secondly, Article 18 (1) of the ICCPR also states: freedom, either individually or in
community... in public or private, to manifest his religion or belief in worship, observance,
practice and teaching."

“Brown v. Board of Education”13, a 1954 decision by the United States Supreme Court, stated
segregation between Black and White children in public schools to be illegal. While nine
African-American students arrived at "Little Rock Central High School in Arkansas", they
were met by an enraged White mob and several troops dispatched by Arkansas Governor Mike
Beebe to bar them from entering the school.

11
https://indiankanoon.org/doc/185172001/
12
https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
13
https://www.britannica.com/event/Brown-v-Board-of-Education-of-Topeka

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As a result, International Law clearly states that any behavior or practice that infringes such
freedoms like wearing of the Hijab also violates basic human rights.

How does the Apex Court of India balance "Pluralism v/s Secularism"?

Our founding fathers understood that preserving India's democracy required safeguarding
multiple religious identities inside a secure, secular framework. Numerous times, the Judiciary
has stepped this tightrope, secularism and balancing pluralism.

The Supreme Court, for example, decided in favour of three pupils who were dismissed from
school for refusing to sing "Jana Gana Mana" in the "Bijoe Emmanuel vs. State of Kerala
(1986)" 14case. The Hon'ble Apex Court ruled that singing the national anthem seemed to be
incompatible with the students' Jehovah's Witness faith. As a result, their removal from school
amounted to a violation of their right to profess and exercise their faith. This demonstrates the
Supreme Court's use of constitutional morality in complex constitutional matters. "The Hijab
ban controversy also expects that the Indian judiciary addresses the Hijab row based on the
ethics of a progressive-inclusive society.".

Banning of Hijab: an intersectional and indirect discrimination

It is also worth noting that this is an example of intersectional discrimination, coined by

Kimberly Crenshaw. Intersectional discrimination implies that humans are created by several
identities which cut across each other rather than a single identity. Because of the intersection
of two identities, being Muslim and being a woman, Muslim women are currently excluded.
The Constitution forbids discrimination based exclusively on these protected reasons. As in
2018 the Supreme Court held in “Navtej Singh Johar v. UOI”15, the "essential content of the
anti-discrimination provision is the appreciation of the intersection of varied identities and
characteristics".

Furthermore, the government edict prohibiting clothing that violates "public order" is indirect
discrimination. In 2021, the Supreme Court of India recognised the notion as a component of
our constitutional law in “Lt. Col. Nitisha v. UOI”. When an action appears to be neutral on

14
https://indiankanoon.org/doc/1508089/
15
https://indiankanoon.org/doc/168671544/

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the surface, but has a disproportionate effect on a protected class, it is called indirect
discrimination.16

Will a ban on the hijab empower Muslim women? Or What will be the possibilities if the
Karnataka Court upheld the banning of hijab in educational institutions?

Either the Muslim community supports the ruling and normality will resumed without using
hijabs, or there will be a backlash against this, forcing women to drop out of school or enroll
in private educational institutions which permit the practice. Religious attitudes of the validity
of sociocultural behaviours do not transform quickly after legal decisions. One instance is
widespread protests over the Supreme Court's (today de facto stayed) order permitting women
of all ages to enter the Hindu temple of Sabarimala in Kerala. It is impossible to foretell the
future, any large-scale exodus of Muslim women due to a prohibition on what appears to be a
common dress code will simply widen their educational gap with the others.

Conclusion

While the majority sees the Hijab debate as a war for religious freedom, a closer examination
reveals it to be a fight for education. In reality, in India, wearing religious symbols such as
Hijab or saffron shawls in public places is not unusual. When variety creates divisions, then
divisions become faultlines, the country's integrity is jeopardised. As a result, it is essential that
the Indian judiciary tackle these major constitutional quandaries before their polarising
consequences spread to the poll-bound states.

16
https://www.legalserviceindia.com/legal/article-6743-indirect-discrimination.html

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