The Supreme Court on 13 October delivered a split verdict on a clutch of petitions seeking reversal of a Karnataka government order that asked state-run educational institutes to not allow any religious clothing beyond the uniform.

The Karnataka government had issued the order on 5 February after a major row erupted where Muslim girl students from various schools and colleges began insisting on attending classes in their hijab (headscarves covering hair, neck and shoulders).

These students were backed by extremist organisations.

One of the judges hearing the case in the Supreme Court, Justice Hemant Gupta, dismissed appeals against the Karnataka High Court judgement ruling in favour of the state government order.

Justice Sudhanshu Dhulia, on the other hand, set aside the judgement and quashed the government order holding hijab as “a matter of choice.”

“It [wearing hijab] is ultimately a matter of choice, nothing more, nothing less,” he said.

Due to the split verdict, the state government order, however, continues to be effective for now. The matter will next be placed before the Chief Justice of India.

The flaws in the argument of choice

Justice Dhulia’s verdict is riddled with flaws and is near impossible to implement. Below are the reasons.

1. Should the uniform be discarded?

With the Supreme Court verdict, the question of allowing hijab in educational institutes as an essential religious practice in Islam is out of the legal debate.

Now, the debate is solely about educational institutes’ discretion in the matter of implementing uniform versus choice of a student to wear what she wants.

If a student is indeed free to wear what she wants, then uniform cannot have any place in any educational institute.

Implementation of choice practically means that the uniform must be banned. This matter can be debated, but it’s a different debate altogether and not related to the hijab issue.

Proponents of this argument must file a fresh petition in court to ask for a ban on all uniform because the right to wear what one wants is immediately curbed the moment they enroll in an institute that has a dress code.

2. Challenges in accommodating different choices

It is one thing for an individual institute to give selective concessions to some students to accommodate their choice. It is quite another when a court, that too the apex court, rules that a student’s choice is to be upheld in matters of dressing.

Such a ruling will have far-reaching consequences and will not be limited to the petitioners in the ongoing legal debate. If hijab is a choice for some, saffron shawl is a choice for others.

This is evident from how several students in Karnataka schools and colleges began wearing saffron shawls in response to selective permission given to Muslim girls for wearing hijab.

Permission to both group of students proved to be a security nightmare for the institutes.

In the weeks leading to the legal battle over hijab in Karnataka HC in February, it was seen that students wearing such distinct religious markers often confronted each other and came close to violence.

How schools would tackle that hostility and maintain peace at the campus without constant presence of police remains a question and cause for concern.

3. Choice only for women?

In his statement on choice being the deciding factor in the hijab debate, Justice Dhulia referred only to girl students.

This begets the questions: Will the choice in matters of dressing be available only to girl students? If yes, will it not be gender discrimination? If no, will the schools be forced to allow boys to wear what they want?

What if they choose to dress in a way that some girls find uncomfortable? What if Hindu students choose to dress in the way prescribed in their religious texts?

Below are two of the several verses related to students in Manu Smriti (The author has used the translation by Dr Surendra Kumar of Aarsh Sahitya Prachar Trust, which is affiliated to Arya Samaj. The text is taught at Arya Samaj gurukuls, and is against birth-based caste system).

Verse 2.41: Students from the three Varnas must use mats made up of skin of black deer, deer and goat respectively. They must also use clothes made up of silk and wool.
Verses 2.46 - 2.47: One pursuing knowledge (Brahmin) must carry a stick of the same height as from foot to hair on head.
One pursuing strength and defense skills (Kshatriya) must carry a stick of the same height as from foot to forehead.
One pursuing management and business skills (Vaishya) must carry a stick of the same height as from foot to nose.

4. What if girls choose full-body veil instead of headscarf?

Justice Dhulia’s verdict that choice must prevail in matters of dressing in educational institutes practically gives permission to girls to wear a full-body veil at the campus, if at least some choose to do so.

This also means that regressive parents or societies will force their girls to wear a burqa because they know the school allows it. Compulsion can be easily passed off as choice.

5. What about private institutes?

The ongoing legal debate involves both – the government institutes as well as private institutes, given that students of both these establishments petitioned the court to be allowed to wear the hijab.

A verdict allowing choice in matters of clothing would have far-reaching repercussions for institutes across India, and not just the state-run educational ones in Karnataka.

If private institutes are forced to comply, then what will be the repercussions? We could see all private institutes - be it corporate offices or hospitals or malls – being forced to allow hijab or saffron shawls or any other clothing. Will it be fair?

Will the state not be encroaching on the freedom and rights of private bodies if it forces them to bend their rules and regulations to accommodate all forms of uniqueness of religious practices in a land with the highest cultural and religious diversity in the world?

6. How to ensure that choice will be limited only to clothing?

If clothing is left to choice, why not other aspects of schooling such as the timing of lunch or duration of classes or, for that matter, holidays?

The repercussion of such a judgement could be that tomorrow, some students may petition to be allowed to have food at the time of their choice or allowed to carry out a religious activity while the class is on because it’s their choice or take summer vacation when they want instead of the schools deciding for them.

How will the schools accommodate such choices?

7. Working cohesively

Can any institution work cohesively if individual choice stands supreme over common rules and system?

Imagine such a scenario for a court. Under the Bar Council of India (BCI) Rules, which lawyers across the country must adhere to, an amendment was made in 2006 that lawyers should address judges of high courts and Supreme Court as “Your Honour” or “Your Lordship”.

Why are lawyers not free to use terms of their choice for addressing the judges? Or, for that matters, in matters of clothing?

On the contrary, we saw last year Allahabad HC imposing a dress code of white shirt for men and white saris for women lawyers even if they are appearing for hearings virtually, from their home.

The court’s directions came after a male lawyer appeared in his vest and others in colourful shirts.

Justice Dhulia, while giving his order upholding choice, observed that several girls do household chores before going to school, and restriction on hijab may make their lives more difficult.

It is pertinent to mention here that the educational institutes in Karnataka from where the controversy erupted, bent much of their rules to accommodate the girls’ demand of hijab.

The instituted allowed them to enter the premises in hijab (including burqa) and wear it outside the classrooms. It was only inside the classrooms that the girls were prohibited from wearing it for sake of uniformity.

For that, the institutes even provided a separate room for the girls to change. The girls, however, would stop at nothing but permission to wear hijab inside classes, arguing it to be an essential religious practice which they must follow at all times.

It’s quite clear that the restriction on hijab only inside classrooms would not make their lives any more difficult than it might already be, unless they ‘choose’ to make it so.

Swarajya coverage on Hijab can be accessed from here.

Also Read: Pro-Hijab Verdict Would Be Dog-whistle For Fundamentalists

Justice Sudhanshu Dhulia

'Hijab is Matter of Choice': Seven Questions This Verdict Leads To

In Brief: Justice Dhulia’s Judgement In Karnataka ‘Hijab Case’

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