*Paromita Das
Karnataka’s hijab case has inevitably moved into a higher orbit of national reckoning. The Supreme Court’s judicial wisdom will now be applied to a slew of issues raised by the case, which stemmed from an Udupi college’s refusal to allow girls to wear the Islamic headscarf on campus.
A slew of appeals have been filed, and more may be on the way. They are contesting the Karnataka High Court’s March 15 ruling, which upheld what has come to be known as “the hijab ban” in popular parlance.
While framing the issue, the three-judge HC bench chose to prioritize the question of whether the hijab was required for Islamic practice.
This elevated a practical question—one that could have been tightly framed and addressed at the level of a conflict between college rules and individual rights—to a more fundamental, risky realm. Finally, the court ruled that Islamic tenets did not require the hijab.
The verdict also favored the uniform concept, stating that schools and pre-university colleges (PUCs, the equivalent of Plus 2) are “qualified public spaces” where the concept of discipline is paramount and must take precedence over individual choice. The relevant Karnataka Act of 1983 prescribed no uniform, and only a Government Order (G.O.) of February 5, 2022, brought in executive cover for uniforms prescribed by individual colleges, even as the controversy raged.
The court eventually upheld that G.O. as well, ruling that it did not violate the principle of equality and was not discriminatory in nature.
The verdict, strictly limited to its actual scope, applies only to Karnataka’s schools and PUCs. Not in offices, malls, streets, or any other public space—or anywhere else in India, for that matter. However, due to the general principles it establishes, its tenor can be heard everywhere. Furthermore, the issue involves a slew of constitutional rights. Take, for example, Articles 14, 15, 19(1), and 25-28, which guarantee Indian citizens’ rights to equality, non-discrimination, freedom of expression, and freedom of conscience/practice of religion. The last one is especially potent. What began in Udupi may eventually spread from Usilampatti to Uttar Dinajpur.
Commentators do not rule out the possibility of “an unmanageable deluge” of copycat court cases against practices in other religions: the potential for mischief, as well as a spillover effect across India’s social and political domains, is not insignificant.
Sanjay Hegde, a Supreme Court advocate who represents the petitioners, believes the judgement is flawed even on the fundamental point of the February 5 G.O. “The question is, where is the authority to impose a uniform? Can you do it by rule if it isn’t in the original Act? Can a rule have more power than it was given? “He inquires. However, once the court’s jurisdiction was exceeded, there was a sense of impending doom.
“There is a lot of writing in the sociology of law about how judicial reasoning is always contextual—the thinking of judges inevitably flows from a time and place. And this is true even in less politically charged times “Shahrukh Alam, a Supreme Court lawyer, says. From the bare bones of a case, judges tend to reflect the broader consensus in society.
Meanwhile, sections of Muslim civil society and commentariat are outraged. “The verdict is unsatisfactory. The judges’ interpretation of a religious matter was incorrect. They should have enlisted the help of religious scholars to explain the situation “Dr. Zafarul-Islam Khan, former chairman of the Delhi Minorities Commission, reflects the community’s sense of alienation.
According to him, the verdict risks providing “judicial sanction to bigotry.”
Not everyone is in agreement. Kerala Governor Arif Mohammed Khan, who famously defied conventional wisdom in the Shah Bano case in the 1980s, applauded the verdict wholeheartedly. “The question here is strictly limited to schools/colleges. The critics are exaggerating its scope…as if the governments of India and Karnataka are denying women the right to dress as they see fit. They claimed that triple talaq violated Article 25 “According to India Today TV, he said. There are also many in-betweeners, those who are ambivalent about the hijab but see the ruling as an infringement on an inviolable space of personal and community choice.
Aside from those debates, the verdict has the potential to jeopardise the education of tens of thousands of Muslim girls. Rana Safvi, a writer-historian, says: “Several conversations are taking place here. The rule of law, constitutional rights, patriarchy, all of this. But my main concern is for the girls themselves. In UP and Delhi, I’ve seen many first-generation students whose families only allow them to attend school because they wear a hijab. Whether you like it or not, reality is what it is…and it will have an impact on real people’s lives. Their right to an education is jeopardised as a result.”
Many people are concerned about the importance placed on the concepts of ‘uniforms’ and ‘discipline.’ “It can be read in classic Foucauldian terms: forming an idea of what constitutes a model citizen as one who is disciplined, homogeneous, blends in, and asks no questions. That a constitutional court has put its stamp on it is deeply troubling to me “Alam explains. This is also the ground on which discussion of a uniform civil code can take place, as evidenced by BJP politicians’ proclamations in February.
There’s also a realistic plane in this scene. Some believe that the ruling establishment may not want to go down that path and open a can of worms—while keeping the debate alive.
India’s social landscape is infinitely complex, hosting everyone from burqa-clad Muslim women to kiran-wielding Sikhs to Digambari (‘sky-clad’) Jain monks and Naga sadhus without a stitch on. A collection of exceptions. How does one go about enforcing uniformity? Is it even a desirable option? These are perennial concerns.
The extent to which the hijab case travels from its humble beginnings to such universal realms will also be determined by some technical aspects of the law. What petitions are brought before the Supreme Court, whether they are Special Leave Petitions (SLPs) or Public Interest Litigations (PILs), and who files them. Niba Naaz, an Udupi college girl who was not among the original petitioners, was the first to go.
She filed an SLP lawsuit on the grounds that the verdict had a direct impact on her because she was within its territorial jurisdiction.
Some are PILs, and the All India Muslim Personal Law Board is considering one. A PIL will ‘generalise’ the scope of the verdict. What was not applicable elsewhere makes an ingress to a universal context by being treated on its abstract aspects (‘essential practice’) rather than concrete ones (‘was the Udupi college correct?’). The legal community believes the Supreme Court will not rush into that decision. It has postponed a list of the case’s tell-tale signs for more than one observer so that, if desired, it can let the matter linger while following standard protocol.
Democracy and law can appear to be at odds at times: too much proscriptive law can lead to fewer freedoms. If the Supreme Court allows things to linger, it may be deliberate procrastination.
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