The Supreme Court is slated to pronounce its judgement today (Thursday, 13 October) on a clutch of petitions challenging the Karnataka High Court judgment which had upheld the ban on wearing hijab in educational institutes in the state.
A bench of Justices Hemant Gupta and Sudhanshu Dhulia, had on 22 September reserved its judgement in the matter after a 10-day long hearing which began on 5 September.
So, what have the petitioners’ counsels said in the Supreme Court? What has the State said? And, what are the possible outcomes? We explain.
A Timeline of Events
The Karnataka High Court Judgement
The Karnataka High Court, had on 15 March, highlighted the following key points in its judgement:
On Essential Religious Practice: Dismissing the petitions filed by Muslim girl students, seeking protection of their right to wear hijab in educational institutions in Karnataka, the Karnataka High Court said:
"We are of the considered opinion that wearing of hijab by Muslim women does not form a part of essential religious practice in Islamic faith... The prescription of school uniform is only a reasonable restriction that is constitutionally permissible which the students cannot object to."
On the Significance of Hijab in Islamic Faith: Observing that "there is sufficient intrinsic material within the scripture itself to support the view that wearing hijab has been only recommendatory," the court claimed:
"No material is placed before us for evaluation and determination of pleaded conscience of the petitioners. They have not averred anything as to how they associate wearing hijab with their conscience as an overt act. There is no evidence that the petitioners chose to wear their headscarf as a means of conveying any thought or belief on their part or as a means of symbolic expression."
On School Uniforms: "It hardly needs to be stated that schools are ‘qualified public places’ that are structured predominantly for imparting educational instructions to the students. Such ‘qualified spaces’ by their very nature repel the assertion of individual rights to the detriment of their general discipline and decorum, " the court had said.
"By no stretch of imagination, it can be gainfully argued that prescription of dress code offends students’ fundamental right to expression or their autonomy," it added.
The court had pointed out that school uniforms promote harmony and spirit of common brotherhood which goes past religious or sectional diversities.
On 'Unseen Hands': Expressing dismay over how the hijab row suddenly erupted in the middle of the academic term, the court said: "The way, hijab imbroglio unfolded gives scope for the argument that some ‘unseen hands’ are at work to engineer social unrest and disharmony."
Issues SC is Expected to Examine
The Karnataka High Court had, in its order, observed that the protection guaranteed under Article 25 (freedom of conscience and free profession, practice and propagation of religion) is only for those rituals and observances, which are essential or integral to a religion.
Thus among other things, the top court is naturally expected to examine whether the Karnataka High Court’s application of the test of 'Essential Religious Practice' in this matter was accurate (including whether they should have gone into that at all) and whether or not the petitioners are entitled to enjoy protection guaranteed by Article 25 of the Constitution.
The Supreme Court will also have to consider the contention that Hijab-restrictions are violative of Muslim women’s rights to privacy and freedom of conscience.
Further, they can be expected to examine whether or not denying a woman the right to dress as she deems appropriate is an infringement of her right to liberty, as well as freedom of expression. Neither of these issues was addressed in any detail by the Karnataka High Court, which was a key ground for criticism of the order.
The Supreme Court is also expected to delve into the possibility of the Karnataka government order (effectively, the Hijab-ban) being inherently discriminatory on grounds of religion. This is because Article 15(1) of the Constitution of India prohibits religious discrimination by the State and Article 14 provides for equality before law to all.
The petitioners have pointed at that obvious unfairness of the choice between education and religious attire that hijab-practicing Muslim girls are being compelled to face in Karnataka, and have broadly submitted that the Hijab Ban curtails Muslim women's fundamental rights to freedom of expression, freedom of conscience, liberty and privacy.
What Have The Petitioners Counsels Said In the Supreme Court?
On Essential Religious Practice
- Senior Advocate Devadatt Kamat stated that the Karnataka High Court had erred by first deciding if Hijab was an essential practice, without deciding if the Government Order could be a restriction.
He added that first it had to be seen if there was a valid constitutional restriction, and only then could the question of Essential Religious Practice arises
He further submitted that there was a divergence of views between Karnataka, Kerala and Madras High Court judgments on whether Hijab was an Essential Religious Practice as Madras and Kerala have held Hijab as an essential practice but Karnataka had differed.
- Senior Advocate Yusuf Mucchala argued that in a case of individual right, the essential religious practice must not be invoked.
"So far as individual's rights are concerned, there is no question of application of essential religious practice. That question comes only when a religious denomination is asserting its right," he submitted.
According to him, the right to wear the veil comes from Article 25 and 19 and not article 26.
- Senior Advocate Salman Khurshid, on being asked by the bench if the Hijab was an essential religious practice said that:
"It can be seen as religion, can be seen as conscience, can be seen as culture, can be seen as individual dignity and privacy.”
- Senior Advocate Colin Gonsalves, delving into this question said that the issue is if the practice is genuine or held as part of the profession of religion, and not whether it is essential or not.
"The question is if Hijab is a practice of Islam, and of course it is. Millions of girls wear it. They feel it essential. It may not be essential in the sense you are excommunicated if you don't follow. But the fact is it is followed widely,” he said.
- Senior Advocate Rajeev Dhavan submitted to the court that once it is shown that a practice is bona fide, it is permissible.
He said that the High Court's finding that since, Quran does not prescribe any punishment for not wearing hijab, it is not mandatory, is "puzzling".
According to the tenets of the faith, if something has been followed, it is allowed, he said. It, thus, needed to be examined if the practice is prevalent.
- Advocate Prashant Bhushan submitted that it was not necessary for the petitioners there to raise Essential Religious Practice argument and they only need to show bona fide practice. He also submitted that a public educational institution cannot impose a dress code. Further, restricting only hijab when other religious dressings like turbans are permitted, is unconstitutional, he said.
Interestingly, towards the end of the hearing, Justice Dhulia orally observed that the High Court should not have gone into the essential religious practice test.
“They have relied on a term paper of a student, and they have not gone to the original text. The other side is giving another commentary. Who will decide which commentary is right?", he asked.
On being asked for a comment, Advocate-On-Record (AOR) and counsel for one of the petitioners Adeel Ahmed told The Quint:
"The entire case wrests on whether the Karnataka High Court should have delved into the test of Essential Religious Practice."
It needs to be deliberated upon if wearing a Hijab is an essential practice or a religious practice, he said.
Referring to the Sabarimala case, Ahmed also added that the central question is: “Can courts be custodians of religion?”
On the Right to Dress
- Senior Advocate Devadatt Kamat submitted before the apex court that the right to freedom of expression under Article 19 of the Constitution includes the right to dress.
He said, "By actually saying if you come to school wearing a hijab we will not allow you, State violates Article 19… The Government Order is giving petitioners a Hobson's choice, forcing them to choose between their identity and dignity and right to education."
"You can't take it to illogical ends. Right to dress will include right to undress also?" Justice Gupta orally remarked.
In response Senior Advocate Kamat said that he was not making a "cliché argument" and that no one was undressing in school.
"No one is denying the right to dress," Justice Gupta said
- Senior Advocate Kapil Sibal argued before the court that dress is both at the heart of rights to privacy and expression.
“If I have that right in a public place, does that right get extinguished when I enter the school gate? Constitution does not say so. Article 19 does not say so. What is the limit under Article 19? Public order. That is the only limit. That is the real constitutional question,” he added.
On Right To Privacy
It was argued before the court that the right to wear hijab in educational institutions can be traced back to the Puttaswamy judgment, where the Supreme Court held that privacy attaches to a person, not to a place.
"This is how I take my privacy to the school," Advocate Shoeb Alam argued.
Alam added that the extent to which an individual chooses to cover his or her body to feel secure from public gaze is a matter of personal choice.
"After Navtej Johar, Puttaswamy, the rights are so wide, there is no hierarchical difference between enumerated and non-enumerated rights… The High Court makes a mistake by saying these are unenumerated rights and are less protected. That takes us back several years before Puttaswamy decision."
On Public Places
Senior Advocate Dushyant Dave argued before the court that fundamental rights (in this case under Article 25) can be exercised anywhere.
To this, Justice Hemant Gupta orally observed that whatever judgments he had seen, they talked about religious practice inside the religious places.
Citing the usage of the statement "freely" practice, profess and propagate religion in Article 25, Dave said that the “the fundamental rights I have I can exercise anywhere, whether in my bedroom, or classroom.”
On Allegations of PFI Links & Controversy
With regards to the Solicitor General’s allegations that till the year 2021, no girl student was wearing any hijab, but an agitation was initiated by the Popular Front of India, Senior Advocate Dushyant Dave said that he regrets such imputations.
He also added that to say that till 2021 nobody wore Hijab was a “grandiose statement” sans any pleading to that context, and that there is no mentioning in the Karnataka Government circular of any PFI activity.
Further, Senior Advocate Huzefa Ahmadi submitted that no such argument pertaining to PFI were raised before the Karnataka High Court.
“It is an argument introduced to create a prejudice,” Ahmadi reportedly said.
What Has The State Said?
On the point of essential religious practice, the Solicitor General Tushar Mehta argued that the practice must be shown to be compelling, co-existing with the religion itself. However, in this case, the Petitioners had failed to show that wearing of hijab is a practice from time immemorial and if they would be excommunicated if not worn
Karnataka Advocate General Prabhuling Navadgi argued that not every religious practice is protected under Article 25 of the Constitution.
So far as right to privacy under Article 21 is concerned, Navadgi submitted that Right to privacy is a "developing jurisprudence" and even as per the Puttaswamy judgment, it cannot be exercised in all zones
Senior Advocate V Mohana appearing for college teachers argued that the whole issue was being viewed only from the angle of religion and not from that of education
"School is a public place where they come to form a symbiotic relationship, forgetting where they are coming from…It is not about religion, it is about bringing discipline to students. As a teacher it's my moral and legal duty to ensure that disciplined atmosphere is maintained," he said.
What Next?
The cause list uploaded on the Supreme Court's website on the eve of the Hijab verdict indicates that there will be separate judgments by both Justice Gupta and Justice Dhulia. It remains to be seen whether the judgments are concurring with each other or dissenting.
Previously, in August, in a case pertaining to the use of the Idgah Maidan in Bengaluru's Chamarajpet for Ganesh Chaturthi, Justices Gupta and Dhulia had opined differently. The matter was thereby referred to a three judge bench. If there is a difference of opinion in this case as well, a similar outcome (reference to a larger bench) can be expected.
If the judgments are concurring, then what the judges decide will be the outcome of the case. This outcome can range from the bench concurring with the Karnataka High Court judgement and upholding the ban on Hijab in educational institutions in the state, the matter being sent for adjudication to a larger bench, or even a stay on or a reversal of the Karnataka High Court order.
On being asked what happens if the high court judgment is, in fact, upheld by the top court, AOR Ahmed said that the petitioners in the case could file a review petition as a next step.
(With inputs from LiveLaw, Bar and Bench and PTI.)
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