Hijab Ban Appeal #6: Court Engages With Intersectional Discrimination and Forced ‘Barter’ of Rights

On September 14th, 2022, a long list lawyers jostled for their place in the queue to be heard by Justices Hemanth Gupta and Sudhanshu Dhulia in the challenges Karnataka’s Hijab ban in educational institutions. Today marks the seventh day of arguments. While the Bench is in a hurry to conclude, the lawyers insist that a matter this important requires patient and detailed hearings. 

Both Judges remained silent through most of the day, interjecting only to remind the many lawyers that their arguments had already been made by those appearing before them. Even so, the Court engaged with the concepts of intersectional discrimination and ‘barter’ of rights today.

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. 

Sr. Adv. Jayna Kothari: Hijab Ban Must Be Viewed Through the Lens of Intersectional Discrimination

Senior Advocate Jayna Kothari, arguing for NGO Women’s Voice, introduced  the  concept of intersectional discrimination. She stated that the ban discriminates against muslim women on the basis of both their religion and gender. This, she argued, violates Article 15(1).

Ms. Kothari said that the SC recognised the principle of intersectional discrimination in Patan Jamal Vali. In this case, relating to the Prevention of Atrocities Act, Justice D.Y.  Chandrachud said that ‘discrimination caused by intersecting identities amplifies the violence against certain communities’. 

Many lawyers before Ms. Kothari focused on Article 25, arguing that the Hijab is an essential religious practice (ERP). The problem, as many argued , is that the Court’s ERP test is far from settled—is essentiality to be decided based  on religious scriptures, religious leaders or  the belief of the community. 

Ms. Kothari provided the Bench with a way out of the ERP confusion. She argued that any disadvantage on the basis of religion constituted discrimination under Article 15(1). There is no need to assess the essentiality of the hijab to Islam in order to hold that the ban is unconstitutional. 

Ms. Kothari further cited Articles 2(c)&(d) of Convention for Elimination of Discrimination Against Women, 1979, which bar policies that bolster gendered inequality. As India is a signatory to the convention, she argued that the ban violates India’s obligations under international law. Senior Advocate Meenakshi Arora mentioned the Convention for Rights of the Child, 1989 (CRC), which makes State responsible to protect childrens’ religious rights, to make a similar point. She quoted a UNHRC decision finding the Hijab ban by Christian schools in Norway to violate the CRC. 

Adv. Shoeb Alam: Hijab Ban Forces Muslim Women to Barter One Right For Another

Advocate Shoeb Alam responded to the Bench’s concern from previous hearings that the freedom to dress as one likes may not extend to the school. Mr. Alam referred to the Puttaswamy Judgment (2017) to argue that dress is a part of dignity. The right to dignity vests in the person, not a place. The right to dignity does not disappear even in prison, he stated. It may be restricted, but only reasonably. The hijab ban, he argued, was not reasonable. A person is entitled to the personal choice of how much of their body they wish to cover, he stated.

Mr. Alam referred to SC Judgments in Mohini Jain (1992), Rahul Unnikrishnan and K.S. Puttaswamy (2017) to argue that education is a fundamental and socio-economic right. Justice Dhulia, on several occasions, pointed out to lawyers that  the right to education under Article 21A is limited to primary education. Mr. Alam responded, relying on Farzana Batool (2021) where the SC cast a positive responsibility on the Union and States to ensure access to even higher education.

In multiple Judgments, Mr. Alam argued, the SC held that no citizens can be made to ‘barter’ one right for another. The hijab ban forces Muslim women to trade their right to religion for education.

Arguments on Cultural, Religious and Educational Rights Repeated

The Bench has heard arguments on Articles 19, 21, 25 and 29 over and over from various lawyers over the past 6 days.

Sr. Adv. Colin Gonsalves argued that any religious belief held genuinely is protected by Art 25, and it is unnecessary to test essentiality through scriptures. 

He stated further that constitutional morality bears the interests of the minority in mind. However, the Karnataka High Court Judgment is majoritarian & makes hurtful comments about minority.

Sr. Adv. Kapil Sibal argued that the case raises questions of cultural, religious and anti-discrimination rights. It must be heard by a Constitution Bench. 

He also placed findings from an RTI filed by the Deccan Herald—over 140 out of 900 muslims girls left schools in Karnataka  after the ban.

Sr. Adv. Kirti Singh argued that the ban violates the right to education, and is not even facially neutral, since it specifically targets  one religious group.

 

The Bench will continue to hear arguments challenging the ban at 2pm on September 19th (Monday). Sr. Adv. Dushyant Dave, who refused to adhere to the Court’s 15 minute time limit today, is expected to argue.

 

Dig Deeper

• SC’s Recognition of Indirect Discrimination: Writing for The Hindu in 2021, Senior Advocate Jayna Kothari argued that the Patan Jaman Vali Judgment deepens the Court’s understanding of oppression and identity-based violence by recognising the principle of intersectional discrimination. She stated, however, that the Judgment repeats an old problem of placing a high evidentiary standard to prove that a crime was, in fact, due to one’s identity. Read Ms. Kothari’s article here.
• Fallout From the Hijab Ban: Deccan Herald’s RTI, which Mr. Sibal quoted in today’s hearings, reveals the wide impact of the ban. The publication spoke to some students who transferred from their schools after the ban to ask them how they will continue their education. Read their testimonies 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.