Concerns over judicial overreach regarding religious liberty in ostensibly secular India have prompted constitutional scholars and rights advocates to criticize a recent court order upholding a ban on Muslim students wearing head coverings in schools.
Despite the fact that the ban is only in effect in the southern state of Karnataka, critics fear it will be used as a precedent for further restrictions on Islamic expression in a country where Prime Minister Narendra Modi’s Bharatiya Janata Party is already experiencing a surge in Hindu nationalism.
“The norm you are setting with this verdict can impede the religious freedom of any religion,” said Faizan Mustafa, a scholar of religious freedom and vice chancellor at Hyderabad’s Nalsar University of Law. “Courts should not make decisions about what is fundamental to any faith.” You are prioritizing certain behaviors over others by doing so.”
Supporters of the judgment argue that it affirms the authority of schools to set clothing regulations and manage student behavior, which takes precedence over religious beliefs.
“Institutional discipline must take precedence over personal preferences.” Otherwise, anarchy will ensue,” said Karnataka Attorney General Prabhuling Navadgi, who represented the state in court.
More than 700 people, including renowned attorneys and human rights campaigners, signed an open letter to the court’s chief justice opposing the prohibition, stating that “the imposition of an absolute uniformity antithetical to the autonomy, privacy, and dignity of Muslim women is unconstitutional.”
The conflict began in January, when a government-run school in the Karnataka city of Udupi forbade students wearing hijabs from entering classrooms. Muslim headscarves, according to staff, were in violation of the campus’ dress code, which had to be aggressively enforced.
Muslims conducted protests, while Hindus staged counter-protests. More schools soon followed suit, causing the Karnataka government to enact a statewide ban.
A group of Muslim female students filed a lawsuit alleging that their fundamental rights to education and religion had been violated.
However, a three-judge panel, which included a female Muslim judge, concluded last month that the hijab is not an important Islamic practice, and so it may be prohibited in schools. As a “reasonable constraint on fundamental rights,” the court found the state government has the authority to establish consistent norms for pupils.
“What is not religiously made necessary,” the tribunal said, “cannot be created a quintessential part of the faith through public agitation or heated arguments in courts.”
The decision was based on what’s known as the essentiality test, which determines whether or not a religious practice is required by that faith. Although India’s constitution does not make such a distinction, courts have utilized it to decide religious disputes since the 1950s.
In 2016, a high court in Kerala ruled that head coverings were a religious duty for Muslims and thus essential to Islam under the test; two years later, the Supreme Court of India used the test to overturn historical restrictions on Hindu women of certain ages entering a temple in the same state, ruling that it was not a “essential religious practice.”
Critics argue that the essentiality test provides courts vast authority over theological subjects in which they lack understanding and where clergy would be better qualified to decide religion.
The Supreme Court of India is split on the test. It established a nine-judge group to assess it in 2019, calling its legitimacy on matters of faith “questionable,” and the subject is still being considered.
The Karnataka complaint cited the Kerala verdict from 2016, but the justices reached the opposite result this time, perplexing some observers.
“That’s why judges aren’t always the best translators of religious scriptures,” says Anup Surendranath, a constitutional law professor at the National Law University in Delhi.
Surendranath believes the court should have applied a faith-based test to determine what Muslim women believe to be true: “If wearing hijab is a genuinely held belief of Muslim females, then why… tamper with that conviction at all?”
From Mukhtar Abbas Naqvi, the federal minister of minority affairs, to B. C. Nagesh, Karnataka’s education minister, Bharatiya Janata Party officials have praised the decision.
Satya Muley, a lawyer at the Bombay High Court, said it’s absolutely legitimate for the judiciary to limit religious freedoms when they conflict with dress regulations, adding that the decision will “help maintain order and uniformity in educational institutions.”
“It’s a question of whether the constitution or religion is more important.” Muley explained. “And the court’s decision has answered that question by affirming the state’s ability to limit certain constitutionally granted liberties.”
Surendranath contended that the judgement was defective because it failed to cite the constitution’s three “reasonable constraints” on governmental interference with religious freedom — for grounds of public order, morality, or health.
“The court didn’t mention these constraints,” Surendranath added, “even though none of them are justified in banning hijabs in schools.” “Rather, it encouraged homogeneity in schools, which runs against to our constitution’s values of diversity and multiculturalism.”
The Karnataka decision has been appealed to the Supreme Court of India. Plaintiffs requested an expedited hearing, claiming that keeping the headscarf ban in place would result in Muslim students missing an entire academic year. However, the court declined to schedule an early hearing.
Although Muslims make up only 14 percent of India’s 1.4 billion inhabitants, they are the world’s second-largest Muslim community. The hijab has never been banned or restricted in public spaces, and women wearing it — like other visible statements of faith, regardless of religion — is commonplace throughout the country.
The conflict has exacerbated sectarian divisions, and many Muslims are concerned that hijab bans will strengthen Hindu nationalists and pave the way for greater restrictions against Islam.
“What if the ban is enacted across the country?” One of the ladies who challenged the ban in the Karnataka courts was Ayesha Hajjeera Almas. “Millions of Muslim women will bear the brunt of this.”
“For many girls, wearing the hijab is freeing. “It’s a contract that conservative families make with daughters in order for them to go out and participate in public life,” he explained. “The court utterly disregarded this viewpoint.”