Split Verdict on Rights of Women In India to Wear Hijab in Classrooms

Indian Muslim women protesting Karnataka government state laws that bans Hijab in classrooms. Photo: Manunath Kiran/AFP

An Indian Supreme Court Bench, headed by Justice Hemant Gupta and Justice Sudhanshu Dhulia, has pronounced a split verdict on whether Muslim women have the right to wear hijabs inside classrooms. 

The judgment, released on Oct. 13, comes in the backdrop of a raging controversy that erupted in December 2021, when female students of a state-run educational institute in Karnataka were barred from entering their high school premises for wearing a hijab. School authorities claimed that religious symbols were impermissible in a secular learning space. 

The ruling state government, which is under Narendra Modi's right-wing Bharatiya Janata Party (BJP), sided with the school authorities. The BJP passed an ordinance banning attire "which disturb[s] equality, integrity and public order in schools and colleges," under the Karnataka Education Act of 1983, which allows educational institutions to mandate uniforms. 

The action of the school authorities was also supported by a faction of Hindu students who wore saffron scarves, a color associated with the Hindu nationalists, in protest against their classmates for wearing the hijab.

Hindu students organize demonstrations against the hijab in BJP ruled Karnataka. Photo: PTI/Reuters

Challenging the government order, aggrieved Muslim students filed a petition arguing that their freedom of religion, guaranteed under Article 25 of the Indian constitution, was being violated. Their attorney, Ravivarma Kumar, further argued that Muslim women were being deliberately targeted, pointing out that "Hindu girls wearing bangles and Christian girls wearing cross are not sent out."

On March 15, the Karnataka High Court delivered a judgment asserting that wearing the hijab is not a fundamental tenet of Islam, implying that the school authorities were well within their rights to ban hijabs in classrooms. In a separate order, the court also reprimanded Hindu students for wearing saffron scarves.

The issue became sub-judice again on July 13, when the Supreme Court of India agreed to hear the matter challenging the Karnataka High Court's decision and instituted a bench of two sitting judges—Justice Dhulia and Justice Gupta.

Justice Dhulia's judgment, released Thursday, emphasized the fundamental right of privacy and the freedom of religion enshrined in the Indian Constitution under Article 21 and 25, respectively. His verdict stated, "a girl child has the right to wear hijab in her house or outside her house, and that right does not stop at her school gate. The child carries her dignity and her privacy even when she is inside the school gates, in her classroom. She retains her fundamental rights. To say that these rights become derivative rights inside a classroom, is wholly incorrect." Justice Dhulia also acknowledged the trials and tribulations the students face while seeking education in the country, insinuating that the Karnataka school policy added more hurdles in their path.

Justice Gupta's judgment, on the other hand, siding against the appellants, argued that wearing a hijab in the classroom would be against the principles of secularism. He states, "...religion cannot be intertwined with any of the secular activities of the State…." Stressing fraternity, which is included in the Indian Constitution's preamble, he added, "... fraternity would be defeated if the students are permitted to carry their apparent religious symbols with them to the classroom." Elucidating further, he argues, “The homogeneity amongst the students in the matter of uniform would prepare them to grow without any distinction on the basis of religious symbols, if not worn during the classroom studies in a Pre-University College."

Following the lack of consensus in the Supreme Court judges' verdicts, the matter will now be brought in front of the Chief Justice of India, who will constitute a new panel that will adjudicate on the matter. In the meanwhile, since the Karnataka High Court's order has not been overturned, school authorities in the state can continue to legally bar hijab-clad women from entering the classroom. 

The issue comes at a time of increasing international concern about the treatment of religious minorities in India. In 2020, The U.S. Commission on International Religious Freedom bracketed India as a "country of particular concern," a charge which the Indian government has strongly refuted.