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NEW DELHI: A recent court ruling upholding a ban on Muslim students wearing head coverings in schools has drawn criticism from constitutional scholars and human rights activists amid concerns over the judicial excesses concerning religious freedoms in officially secular India.
Even if the ban is only imposed in the southern state of Karnataka, critics fear it could serve as the basis for wider restrictions on Islamic expression in a country that is already seeing a rise in Hindu nationalism under Prime Minister Narendra Modi’s Bharatiya Janata Party.
“With this judgment, the rule you issue can restrict the religious freedom of every religion,” said Faizan Mustafa, religious freedom scholar and vice-chancellor of Hyderabad-based Nalsar University of Law. “Courts should not decide what is essential to a religion. In doing so, you favor certain practices over others.
Proponents of the ruling say it is an assertion of schools’ authority to determine dress codes and govern student conduct, and it takes precedence over any religious practice.
“Institutional discipline must prevail over individual choices. Otherwise it will lead to chaos,” said Karnataka Attorney General Prabhuling Navadgi, who argued the state’s case in court.
Prior to the verdict, more than 700 signatories, including senior lawyers and human rights advocates, expressed their opposition to the ban in an open letter to the court’s chief justice, stating that “the imposition of absolute uniformity contrary to the autonomy, privacy and dignity of Muslim women is unconstitutional.”
The dispute began in January when a government school in the city of Udupi, Karnataka banned students wearing the hijab from entering classrooms. Staff members said the Muslim headscarf violated the campus dress code and should be strictly enforced.
Muslims protested and Hindus staged counter-protests. Soon, more and more schools imposed their own restrictions, prompting the Karnataka government to issue a statewide ban.
A group of Muslim female students filed a lawsuit claiming that their basic rights to education and religion were being violated.
But a panel of three judges, including a female Muslim judge, ruled last month that the Koran does not establish the hijab as an essential Islamic practice and therefore can be restricted in classrooms. The court also said the state government had the power to prescribe uniform guidelines for students as a “reasonable restriction on fundamental rights.”
“What is not religiously made obligatory, therefore, cannot become an essential aspect of religion through public agitations or through impassioned arguments in court,” the panel wrote.
The verdict relied on what is called the essentiality test – essentially, whether or not a religious practice is obligatory under that faith. India’s constitution makes no such distinction, but courts have used it since the 1950s to resolve disputes over religion.
In 2016, the high court in the southern state of Kerala ruled that head covering was a religious duty for Muslims and therefore essential to Islam under the test; two years later India’s Supreme Court again used the test to overturn historic restrictions on Hindu women of certain ages entering a temple in the same state, saying it was not a an “essential religious practice”.
Critics say the essentiality test gives courts broad authority over theological issues where they have little expertise and where clergy would be more appropriate arbiters of faith.
India’s Supreme Court itself has doubts about the test. In 2019, he set up a nine-judge panel to reevaluate him, calling his faith-based legitimacy “questionable”; the issue is still under review.
The Karnataka trial cited the 2016 Kerala ruling, but this time the judges came to the opposite conclusion – baffling some observers.
“That’s why judges are not such good interpreters of religious texts,” said Anup Surendranath, professor of constitutional law at the National Law University in Delhi.
Surendranath said the most sensible avenue for the court would have been to apply a test of what Muslim women believe to be true from a religious perspective: “If wearing the hijab is an authentic belief of Muslim girls , so why… interfere with that. belief at all?
The decision was welcomed by Bharatiya Janata party officials, from Mukhtar Abbas Naqvi, the federal minister for minority affairs, to BC Nagesh, Karnataka’s education minister.
Satya Muley, a lawyer at the Bombay High Court, said it was perfectly reasonable for the judiciary to impose certain limits on religious freedoms if they conflict with dress codes, and that the verdict “will help maintain order and uniformity in educational institutions”.
“It’s a question of whether it’s the constitution, or does religion take precedence?” Muley said. “And the court’s verdict responded to that by confirming the power of the state to impose restrictions on certain freedoms guaranteed by the constitution.”
Surendranath countered that the verdict was wrong because it did not invoke the three “reasonable restrictions” provided for by the constitution that allowed the state to interfere with freedom of religion – for reasons of public order, morality or health.
“The court did not refer to these restrictions even though none of them are justifiable to ban hijab in schools,” Surendranath said. “On the contrary, he has emphasized homogeneity in schools, which is contrary to the diversity and multiculturalism that our constitution defends.”
Karnataka’s decision was appealed to the Supreme Court of India. The plaintiffs requested an expedited hearing on the grounds that a continued hijab ban threatens to cause Muslim female students to lose an entire academic year. The court, however, declined to hold an early hearing.
Muslims make up just 14% of India’s 1.4 billion people, but are still the second largest Muslim population in the world for any nation. The hijab has never been banned or restricted in public spheres, and women wearing the headscarf – like other outward expressions of faith, across religions – are common across the country.
The dispute has further deepened sectarian fault lines, and many Muslims fear the hijab ban will embolden Hindu nationalists and pave the way for more restrictions aimed at Islam.
“What if the ban becomes national?” said Ayesha Hajjeera Almas, one of the women who challenged the ban in Karnataka courts. “Millions of Muslim women will suffer.”
Mustafa agreed.
“For many girls, the hijab is liberating. It’s kind of a deal the girls make with conservative families as a way for them to get out and participate in public life,” he said. “The court completely ignored that prospect.”


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