When the Karnataka government on Saturday, 5 February, issued an order regarding uniforms in educational institutions, they might have thought they were putting the recent controversy over hijab bans to rest.
However, the order passed by the government fails to offer any actual clarity. First, it misquotes a state law on educational institutions to wrongly claim it mandates uniforms.
Then it creates a vague prohibition against clothes which "disturb equality, integrity and public law and order" – a prohibition which is meant to tick a bunch of legal boxes to allow hijab bans, but actually makes no legal sense.
As more and more colleges see right-wing groups getting students to wear saffron scarves to 'protest' against the wearing of hijabs, and as one college let hijab-wearing girls in only to put them in segregated classrooms, the order is instead likely to foster even more discrimination, and amount to a failure of the government's responsibility to protect fundamental rights.
With the Karnataka High Court set to consider petitions asking for protection of the Muslim girls' rights on Tuesday, 8 February, the legal failings of the order will come under even more scrutiny.
Here's what's wrong with the state government's approach.
Which Law Says That Uniforms are Compulsory?
The first problem with the Basavaraj Bommai government's order is its invocation of the Karnataka Education Act 1983. According to the order, Section 133(2) of this Act says "a uniform style of clothes has to be worn compulsorily".
But that is not what Section 133(2) of the Karnataka Education Act 1983 says. What it actually says is this (apologies, legalese up ahead):
(2) The State Government may give such directions to any educational institution or tutorial institution as in its opinion are necessary or expedient for carrying out the purposes of this Act or to give effect to any of the provisions contained therein or of any rules or orders made thereunder and the Governing Council or the owner, as the case may be, of such institution shall comply with every such direction.
Break down the legalese, and what remains is this:
The Karnataka Government can issue directions to educational institutes which are necessary or expedient to carry out the purposes of the Act or to allow implementation of the legislation.
What are the purposes of the Act?
According to its statement of objects and reasons, it is meant to "provide for better organisation, development, discipline and control of the educational institutions in the State."
It also says that it is considered necessary to ensure planned development of educational institutions "with a view to fostering the harmonious development of the mental and physical faculties of students and cultivating a scientific and secular outlook through education."
Could a rule on compulsory uniforms potentially fall within the scope of this power? Yes. But does Section 133(2) itself mandate such a rule? No.
One might argue that this is nitpicking, but it isn't.
If the Act had expressly said that uniforms had to be compulsory, as the government order claims, then this would mean that since 1983 this has been mandated by law.
Remember that an Act is a piece of primary legislation, a law passed by the legislature and therefore something where the full scope of law-making power has been exercised after discussion and debate by elected representatives of all affiliations.
For a provision of a primary legislation to be changed, to allow individual modifications to a prescribed uniform, would require the legislature to amend or repeal the Act (which basically involves the same procedure as creating a new legislation), or for the courts to strike down or read down the section because it is unconstitutional.
On the other hand, if the rule for compulsory uniforms is brought in by a direction of the government of the day because they think it is needed, then it is what is called secondary or subordinate legislation. It is not created by the legislature, with its elected representatives from all parties, but instead a diktat from the executive, a decision made solely by them.
For it to be changed would merely require the executive to have a look and decide that actually, this particular direction is not necessary, or needs to be modified, and a fresh direction can be issued.
The considerations for the courts when conducting a judicial review would also be different, because they have to see now whether the secondary legislation is actually within the scope of what the primary legislation allows.
When a government passes an order, it is expected to be aware of these things, and errors in what they say should matter to us, even if the issue seems a bit hyper-technical.
And in this instance, it does matter when there is an urgent need for the state government to engage with its citizens on this issue, particularly the young Muslim girl students whose education is at stake here.
By pretending that the primary legislation itself says the uniforms being insisted on by the pre-university colleges are baked into the law, the Bharatiya Janata Party (BJP) government is shutting down a reasonable discussion with it over the merits of such rules, and whether indeed such rules prevent these girls from wearing hijabs.
Note that the girls are not actually refusing to wear the PUCs' uniforms, they are merely adding a headscarf to it – this isn't even, logically speaking, a violation of the rule to wear a uniform.
If the government had recognised that instead the issue is about whether a ban on hijabs or other items of religious clothing is instead a direction under Section 133(2), then this allows for a debate over whether such a ban can be considered "necessary or expedient" for the purposes of the Act.
And since the Act is meant to ensure education for all, a rule which prevents girl students from attending classes, even when they are complying with all educational requirements and even wearing the full college uniform, actually does the opposite.
How Can Clothes Disturb Public Order?
One of the most interesting things that has been forgotten in this escalating situation is that in the Udupi pre-university college where it all began, there is actually no rule which says that girls cannot wear a hijab to class.
This was something the girls told The Quint right at the outset of the controversy: that they had previously agreed not to wear hijabs because they were told by the school authorities not to do so, but when they actually checked the rules, they found there was no such prohibition.
"We went back and checked. There's no such official rule in the university nor did our parents agree to any such arbitrary policy. So we decided to wear the hijab anyway," AH Almas had told The Quint, as reported on 25 January.
The principal of their pre-university college, Rudre Gowda, eventually admitted to The Indian Express that there was no rule on paper, but tried to insist that it had been followed since 1985.
The Karnataka Education Department does not prescribe any uniform either, which means that even in government colleges, rules on uniforms would need to be set by the institutions themselves, or a College Development Board like the one in Udupi.
But what happens if there are no rules on paper? Can students still be prevented from wearing something like a hijab, even if they are still wearing the full school uniform?
That's where the second big aspect of the order comes in, where it says that "clothes which disturb equality, integrity and public law and order should not be worn."
Senior advocate Sanjay Hegde believes this wording, despite seeming precise, is meaningless from a legal standpoint, and its ambiguity could actually lead to this order being struck down.
"The language is overbroad, vague, and would be struck down for that reason alone by any court," he explains. "It does not in any manner specifically outlaw any kind of clothing along with a uniform. You could very well say that a mask is not part of the uniform. A dupatta is prescribed as part of the uniform – will it now be decided where a girl should wear the dupatta also?"
The choice of terms used here is evidently meant to try and create legal justifications for a restriction on the wearing of certain forms of clothing. The reference to equality and integrity is an attempt to try and make it seem like this restriction is along the lines of the Karnataka Education Act 1983.
The reference to public law and order is an attempt to bring this in line with the grounds for reasonable restrictions under the Constitution – the right to practice one's religion under Article 25 can also be constrained by a reasonable restriction in the interest of public order, after all.
But these are not concepts that can be thrown around just for the heck of it. For something to be considered a threat to public order, it needs to satisfy the tests laid down in multiple Supreme Court judgments over the years.
In the Ram Manohar Lohia judgment from 1960, for instance, the Supreme Court had clarified that a threat to public order means the community or the public at large have to be affected by a particular action as it “embraces more of the community than ‘law and order’, which affects only a few individuals.”
The Karnataka government's order includes multiple failings in this regard. First it says that the clothes in question must not disturb (public) "law and order," but this is not a ground under which Article 25 rights can be restricted.
Even if we read this as a restriction in the interests of 'public order', it is hard to see how any item of clothing worn by a person could be a threat to public order as the Supreme Court has defined it, unless they were literally wearing a shirt with slogans inciting violence.
On this basis, the new Karnataka government order cannot be said to prohibit the wearing of hijab by a Muslim girl, Hegde argues, since the hijab itself does not incite anything – unless the state government is now going to draw up a list of items of clothing that they somehow believe incite violence.
If indeed the order is to be construed as banning hijabs, then this interpretation "is almost inviting a heckler's veto on what people can wear," Hegde warns.
The concept of a heckler's veto is basically that people unhappy with a form of speech or expression threaten violence and disorder, and even though the original speech or expression does not threaten violence or disorder, it gets banned because of what the hecklers are saying.
The Indian courts have previously confirmed that the government can't restrict something because it can't control the reaction of others to it, a recent example being during the Padmavat controversy, when Rajput groups threatened violence if the Deepika Padukone-starring movie was released.
The Bommai government's line about trying to protect equality and unity does not allow for a ban on hijabs either. The girls are still wearing the full uniform of their colleges, just with a headscarf on top, something which the Kerala High Court has previously acknowledged to be an essential religious practice for those who wish to observe it.
If doing so violates equality and unity, then so would a Sikh boy wearing a turban or pagdi.
At the end of the day, either the Karnataka government will have to acknowledge that this order is basically meaningless – in which case issuing it was evidently farcical.
Or, it will have to put its money where its mouth is and say that this order can be used to ban items of clothing like a hijab based on some nebulous idea of public order, even if there is an essential religious practice at play, which they legally can't do – in which case also, the order is a farce.
Of course, that only matters if the government actually cares about performing its constitutional duties to the people, not if the government only cares about short-term political gains even at the cost of dangerous polarisation.