In 2017, the Supreme Court, almost prophetic of the times to come, in the K S Puttaswamy Vs.UOI (2017) 10 SCC 1 cautioned that nobody would want to be told by the state as to what they should eat and what they should wear. As far back as 1949, at the time of the debates of the Constituent assembly, a proposal was made in relation to the freedom of religion. It was proposed by a...
In 2017, the Supreme Court, almost prophetic of the times to come, in the K S Puttaswamy Vs.UOI (2017) 10 SCC 1 cautioned that nobody would want to be told by the state as to what they should eat and what they should wear. As far back as 1949, at the time of the debates of the Constituent assembly, a proposal was made in relation to the freedom of religion. It was proposed by a barrister from Bihar, Tajamul Hussain, that the words,`No person shall have any visible sign or mark or name, and no person shall wear any dress whereby his religion may be recognised," be added as an explanation to Article 25. This proposal, which would have been an affront to India's unique regional, religious and cultural diversity, was outrightly rejected by the constituent assembly.
A controversial notification has recently been issued by the School Education Department of Karnataka under Section 133(2) of the Karnataka Education Act, 1983. While there is no specific reference to the hijab in the notification, its vague language is being resorted to by certain pre-university schools to single out hijab wearing young girls and to deny to them the right to access education. The objective of the notification is for school goers to wear clothing which protects 'equality, integrity and does not hinder with public order.'
The Hijab, a modest headscarf, which has historically been worn by Muslim women across the world, is sought to be catapulted as a contentious political issue in the state. Adorning the Hijab is an expression of one's social, cultural and religious, individual identity. The notification seeks to protect public order, has itself created law and order issues.
While the section authorizes the Government to issue notifications 'to carry out the purposes of the Act or to give effect to any of the provisions contained therein or of any rules or orders made thereunder', no specific clothing is either prescribed or prohibited. It is difficult to fathom how, the wearing of a head scarf would offend equality, integrity or public order. The action of the schools disallowing schoolgirls wearing hijab to enter school on the strength of this vague notification is an unsustainable and mala fide exercise of power.
Scenes of teenagers adorning head scarves, piling up on staircases-visibly excluded from classrooms and those imploring school teachers to permit entry at the school gates, only a month before final exams, are heartrending. A 2020 report of the National Statistical Office titled 'Household Social Consumption: Education', reveals that Muslims, on various yardsticks of academic marginalisation fare as bad as or even worse than SCs and STs. It also discloses that at the higher secondary level the gross attendance ratio was lowest for Muslims at 48.3%. The report also makes the shocking disclosure that 21.9% Muslim girls in the age group of 3-35 years had never enrolled in any academic program. With these dismaying statistics, the state should have shown alacrity and stepped in urgently to quell the exclusion of hijab adorning girls who were inclined and desperate to attend their schools. This unfair exclusion only compounds the problem by restricting the opportunities available to girls to pursue education, which would in turn lead to increased social and cultural backwardness of the community. The state must be reminded of the Supreme Courts observation in the recent Judgment of Farzana Batool Vs. UOI WP (C) 364 of 2021 where it held that the state has an affirmative obligation to facilitate access to education at all levels.
Clothing is a form of expression under Article 19(1)(a). The Supreme Court in NALSA V. UOI (2014) 5 SCC 438 held that no fetters can be placed on one's personal appearance or choice of dressing, which can only be reasonably restricted under Article 19(2) of the Constitution. In the late sixties, in the United States, the school goers clothing was at the centre of debate, with some choosing to wear black arm bands to protest against the Vietnam war. Mary Beth Tinker, a 13 year old junior high school girl was banned and suspended for wearing the arm band this is symbolic of protest. The Supreme Court by a 7:2 majority in the matter of Tinker V. Des Moines 393 US 503 (1969) held that students do not shed their Constitutional right of freedom of speech and expression at the school house gate.
One of the beacons of our constitutional system is Article 14. The right to not be unfairly excluded inheres in this provision. It also guarantees that no two similarly situated individuals or classes can be discriminated against or treated unequally. Every classification has to have a reasonable nexus with the object that it seeks to achieve. It is this constitutional guarantee that becomes the basis to undo innumerable injustices and state excesses. To exclude teenagers from accessing their schools, merely on account of them adorning the headscarf is neither a fair or reasonable classification nor does it bear any nexus whatsoever to the object sought to be achieved by the notification.
This exclusion is a manifestly arbitrary action, fraught with wanton prejudices. The Constitution makers envisaged equality. The state cannot push in uniformity amongst diverse individuals and groups under the garb of equality. Equality is averse to majoritarian conformity. In Navtej Johar's Judgment (2018) 10 SCC 1, the Supreme Court observed that 'the very purpose of the fundamental rights chapter in the constitution of India is to withdraw the subject of liberty and dignity of the individual and place such subject beyond the reach of majoritarian governments so that constitutional morality can be applied by this court to give effect to the rights, among others, of discrete and insular minorities.'
Wearing of the Hijab is not only a form of ones expression of individuality etc., it is also linked to dignity and decisional autonomy which are now recognized as facets of Article 21. In Common Cause Vs. UOI (2018) 5 SCC 1 the Supreme Court emphasized that our autonomy as persons is founded on the ability to decide: on what to wear and how to dress, on the right to believe or not to believe, and to freely decide on innumerable matters of consequences and detail to our daily lives. It is these authoritative judicial interpretations of Constitutional guarantees that ought to have encouraged the state to immediately interdict these illegal actions.
The exclusion also discriminates individuals on the ground of religion and cannot be sustained, being in the teeth of Article 15. No person should suffer any form of disability or discrimination because of his religion but all alike should be free to share to the fullest degree in the common life, said the Supreme Court in Abhiram Singh (2017) 2 SCC 629.
The Kerala High Court [WP 6813 of 2016] after a detailed study of the Quran and the Hadith observed that covering the head is an essential part of Islamic religion and is protected under Article 25(1) and a person wearing a headscarf is insulated from interference by the authority except on the ground of public order, morality and health.
Recently, Austria's Constitutional Court [2020] has ruled that a law banning girls aged up to 10 from wearing headscarves in schools was discriminatory. There too, the legislation did not specify headscarves, instead forbade the wearing of "religious clothing that is associated with a covering of the head". However, the Constitutional Court found that it clearly aimed at Muslim headscarves and held that 'the selective ban applies exclusively to Muslim schoolgirls and thereby separates them in a discriminatory manner from other pupils.' The Law, it was held, went against the state's duty to treat officially recognised religions equally, and violated the principle that singling out any one of them required special justification.
In March 2014, the football apex body, FIFA, lifted the ban on head scarves, allowing players to wear the hijab on the field. In May 2017, the International Basketball Federation (FIBA) too, lifted the ban on the hijab. New Zealand recently allowed a woman wearing hijab to join the police. While the world looks forward and embraces inclusiveness, this regressive and illegal step by the Karnataka government against minor girls tramples unity, defeats integration and is antithetical to ethos of our democratic set up.
The author is an advocate. She practices at the Supreme Court.
Views are personal.