You might have heard about the recent controversy regarding the hijab ban, but before getting into it we must understand that the word hijab is not defined anywhere in the Quran. It only talks about a partition or curtain and is to be used by the wife of prophets. They were supposed to be covered not just in their garments but also in the space that they occupy. Numerous girls across different States are protesting the hijab ban.
How did the Controversy Start?
The controversy began when six Muslim girls were denied access to college at Udipi, Karnataka. In support of these girls, numerous other Students gathered in and around the college and start a protest the same. To this, the college administration held the view that the students are bound to follow the proper dress code and wearing hijabs they have intentionally stayed away from their classes. Following this incident, a group of boys at another college in the state started wearing saffron shawls to college and thus leading a hue and cry among the students.
To tackle this the MLA of the area asked students to comply with the appropriate dress code of college till the government takes a final stand. To this, no heed was given, and the same issues started to arise in several other colleges in Udipi. The matter got worsened when several boys started wearing blue shawls and chanted the Jai Bhim slogan and raised voices in support of Muslim girls. Several groups of opposing views emerged all over the state of Karnataka.
Action by the State Government
As per Section 133(2) of the Karnataka Education Act, 1983 the power to issue directives to educational institutions to follow regarding the subject matter. The Government of Karnataka exercised the same and passed an order stating students to comply with the uniforms as prescribed. Referring to the 2013 directive that the need of wearing a hijab/headband is not an essential religious practice for Muslims that can be protected under the Constitution.
The same issues are now seen in other states as well like Puducherry and Madhya Pradesh, where numerous Muslim girls have come on roads demanding the removal of the ban on hijab at educational institutions. Not only this but there are also reports of agitations, stone-pelting and use of force by police, with the government suspending classes.
When the Matter Reached the High Court
A petition was moved at the High Court of Karnataka challenging the Government order. The major issues framed by the court are that wearing a hijab is protected under Article 19(1)(a) of the Constitution which guarantees the right to freedom of speech and expression and the same can only be limited on the “reasonable restrictions”. Also, the ban on hijab violates the fundamental right to equality under Article 14 since other religious markers, such as a turban worn by a Sikh, are not explicitly prohibited.
The court referred to the 2018 case of Fathima Thasneem v State of Kerala, wherein a writ petition had been moved by the father of two minor girls as the school had denied wearing full-sleeved shirts and headbands. The school administration said it was against the required dress code. To this single-judge Bench of the Kerala High Court ruled in favour of the school which was a Christian Missionary school (a minority education institution).
Fathema Hussain Sayed v. Bharat Education Society, a case from 2003 was referred by the HC wherein a minor Muslim girl had raised an issue over the prescribed dress code of her school. The Bombay HC ruled against the girl who wanted to wear a headband to school and pointed out that the same was not an essential religious practice that needs protection under the Constitution.
Later the single-judge bench of the Karnataka HC hearing the case related to the hijab ban in school-college campuses referred the matter to the Chief Justice, with a view that he may decide on forming a larger bench to investigate the case.
Senior advocates moved to the Supreme court asking to transfer cases related to the subject matter from the High Court to the top court and to place it before a nine-judge Bench. To this, the CJI Ramana told that as the three-judge Bench of the High Court is already dealing with the matter, let it deal with the same.
Later the Supreme Court said it will protect the constitutional rights of every citizen and take up at an 'appropriate time' the pleas challenging a direction of the Karnataka High Court asking students not to wear any religious cloth in an educational institution.
Supreme Court hearing on Hijab Case
The Supreme Court’s Divisional Bench comprising of Justices Hemant Gupta and Sudhanshu Dhulia was hearing the matter and questioned the petitioners challenging the Karnataka High Court order on the ban on hijab in educational institutions, asking “Can students wear anything they want in a school and shouldn't religious practice be kept aside?” The advocate appearing on behalf of the petitioners asked the Court for direction to refer the matter to a larger bench, stating that the issue involves questions relating to the scope and interpretation of Article 25.
The Court resumed the arguments on 7th September and asked all parties to prepare a synopsis of their arguments and submit it. The Court then reserved its judgment on 22nd September 2022 and delivered a split verdict on the case on 13th October 2022. Justice Sudhanshu Dhulia allowed all the appeals and set aside the judgment of the Karnataka High Court whereas, Justice Hemant Gupta's verdict uphold the hijab ban verdict of the Karnataka High Court. Hence, the Court was of an opinion that in light of the divergence of opinion, the matter needs to be placed before the Chief Justice of India for appropriate directions.
What is an Essential Religious Practice?
If we read from the Quran, “it is not correct for a woman to show her parts other than her hands and face to strangers after she begins to have menstruation". The same being against the religious command results from a clash between the institutions and the Muslim girls. The High Court is yet to determine whether this can be termed an essential religious practice.
An essential religious practice is one that lays down the “essential element of the religion” and talks about what exactly is religion. These practices had to be within the limits of Article 25 of the Constitution. The Supreme Court has time and again defined and expanded the scope of religious practices.
The wearing of hijab is restricted and a problem with the expressly high misogynistic and patriarchal logic which create a legal fiction giving women clearly no choice in the matter. In these times, the actual and practical elements are to be taken care of by the court instead of going into the roots. Women should be given the autonomy to make decisions for them and the court should take all this into consideration.