Hijab Ban Appeal #5: Sr. Adv. Sondhi Argues That Ban is Indirect Discrimination

On September 14th, 2022, Justices Hemanth Gupta and Sudhanshu Dhulia heard detailed arguments on the right to equality and against indirect discrimination from Senior Advocate Aditya Sondhi challenging Karnataka’s Hijab ban in educational institutions. 

Senior Advocates Dr. Rajeev Dhavan and Huzefa Ahmadi argued on September 14th as well. Read their arguments here and here. 

Background: What is the Hijab Ban?

On February 5th 2022, the Karnataka government issued a Government Order (GO) directing College Development Committees (CDCs) across the state to prescribe a uniform for students. The GO clarified to the CDCs that disallowing Muslim students from wearing the Hijab, a customary Islamic headscarf, would further fraternity and public order. The ban, according to the GO, would not violate any fundamental rights. 

Starting from September 2021, pre-university colleges in Udupi stopped women from wearing the hijab. Many colleges across the State followed suit. The students challenged the GO and the CDCs’ decision at the Karnataka High Court (HC). 

In the HC proceedings, lawyers argued that the ban violates the muslim students’ Right to Eqaulity, Education and Religious Freedom. On March 15th, 2022, three Judges of the Karnataka HC upheld the ban, stating that wearing the Hijab was not an essential religious practice in Islam and hence, was not protected under the constitutional right to freedom of religion.  

Overnight, a slew of petitions challenging the HC Judgment reached the Supreme Court. 

Mr. Sondhi: Seemingly Neutral Laws are Illegal if They Indirectly Disadvantage Marginalised Groups

Mr. Sondhi, appearing for an intervenor, provocatively quoted a famous Aesop’s fable to the Court. In this story, a stork and a fox are both served soup in a shallow bowl. The fox has no trouble eating the soup, but the stork, due to its long beak, cannot. Even though the same circumstances were provided to both animals, one was left worse off due to its specific needs. Mr. Sondhi explained this to be indirect discrimination.  

The Supreme Court recognised the principle of indirect discrimination in Lieutenant Colonel Nitisha and Ors. v Union of India (2021). In this Judgement, Justice D.Y. Chandrachud stated that seemingly harmless and neutral laws may also be discriminatory if they affect citizens with different needs in different ways. Indirect discrimnation, hence, is not about the intent of an act but its effect. 

Before the Karnataka HC, the Karnataka government argued that the challenged GO was neutral and harmless. Mr. Sondhi, relying on the Sachar Committee Report (2006), argued that educational backwardness among Muslim women is far in excess of other communities. He also placed NGO PUCL’s report analysing the impact of the Hijab ban before the Court. This report shows that many Muslim women were unable to write their examinations, dropped out of secular colleges to return to Madrasa and faced hostility and harassment after the ban. 

Mr. Sondhi argued that the GO, even though it imposed the same uniform on all students, further disadvantaged an already marginalised group. In effect, the ban forced Muslim women to choose between their Right to Education and their Religious Freedom. 

Mr. Sondhi referred to the National Education Policy, 2020 (NEP) as well, in which the Union government sets out that all states must endeavour to achieve inclusion and sensitivity in the Indian education system. The GO goes against the NEP, he argued. 

Ask the Karnataka Gov What Public Order the Hijab Violates, Stresses Mr. Sondhi

Mr. Sondhi implored the Court to ask the Karnataka government what public order was threatened by students wearing a headscarf. He stated that once the students have shown that they have a right to wear the hijab, it is the State’s responsibility to show what legitimate interest is served by banning it.  He relied briefly on Lagos State Govt. v Asiyat Adbul Kareem, where the Kenyan Supreme Court held that allowing the hijab in schools does not violate any other citizens’ fundamental rights. 

The Hijab Is Protected as a Cultural Right

Protecting the Hijab as a religious right has been the focus of arguments at the HC, and to a large extent at the SC so far. Mr. Sondhi argued that even if that argument fails, wearing the Hijab is a key cultural practice among the Muslim community. Muslim women have been wearing the Hijab in public spaces for decades. Students in the schools have worn the Hijab to class for years as well. Article 29 of the Constitution protects citizens’ cultural rights from state interference. 

To indicate that the Karnataka HC has adopted a respectful stance towards cultural rights in the past, Mr. Sondhi relied on Capt. Chetan v Union of India (2021). Here, the HC held that the Kodava community of Coorg had a cultural right to bear firearms, as they were historically a martial race. 

Dr. Rajeev Dhavan followed Mr. Sondhi, arguing on different aspects of the right to equality and religious freedom.

 

 

Dig Deeper

• Indirect Discrimination: Justice Chandrachud’s opinion in Lieutenant Colonel Nitisha and Ors. v. Union of India (2021), which Mr. Sondhi relied on in today’s arguments, places an important responsibility on the Courts to remedy structural inequalities. According to Justice Chandrachud, Court must provide for positive developments to change the discriminatory structures. Read SCO’s analysis of the Judgment here. 

 

• Impact of the Hijab Ban: People’s Union for Civil Liberties, an NGO, collects testimonies from women students, members of the local college administration, officials of relevant government departments, the local police and members of Muslim civil society groups across Karnataka. The report reveals that many students effectively dropped out of school following the ban, faced social harassment and hostility and dealt with severe psychological consequences. Read the report here. 

 

• SCO’s Hijab Ban Case Archive: Interested in a full archive of the developments in the Hijab Ban case, right from the High Court? SCO’s case archive systematically compiles petitions, government submissions, reports of all hearings and significant Orders in the case at the HC and SC. Click here to visit our archive.