Aisha Shifa vs. State of Karnataka or the Hijab Ban Case. In this case, the Supreme Court of India examined the constitutionality of a government order which prohibited female Muslim students from wearing a hijab (scarf)inside the schools and colleges premises.

The state passed an order issued by the Education Department of Karnataka which mandated educational institutions to abide by the applicable official to ensure unity and uniformity. The order stated that the wearing of religious symbols, including headscarves, posed an obstacle to unity and uniformity in educational institutes. Thus, consequently, several institutes restricted entry to Muslim females unless and until they removed the hijab or the headscarf.

The Division bench of the Supreme Court delivered a split verdict. Justice Hemant Gupta upheld the validity of the order and opined that it reinforced. The fundamental right to equality under Article 14 of the Constitution. He reasoned that the order made the constitutional requirements to restrict the freedom of expression and right to privacy of the students. On the other hand, Justice Sudhanshu Dhulia held that the government order was unconstitutional. He stated that the students' rights to dignity, privacy and freedom of expression were inalienable rights, and they could not be restricted based on maintaining discipline and uniformity.

Aishat Shifa vs. State of Karnataka

Basic details of the case
Case- Aishat Shifa vs. State of Karnataka
Citation- AIR 2022 SC 842
Petitioner: Aishat Shifa
Respondent: State of Karnataka
Date of Judgement: 12/10/2022
Bench: Hon'ble Mr. Justice Hemant Gupta
Articles Referred: Art. 14,19,21,22,26,28

Facts of the Case

1. A government order was passed by the full majority bench of Karnataka High Court on 15th March 2022. Dismissing the challenge to the government order dated 5th March 2022. Such government ordered the government schools in Karnataka to abide by prescribed uniform and private schools. Word directed to mandate uniform as directed by the Board of Management which restricted Muslim women from wearing hijab or the headscarf. It was basically to ensure equality and uniformity.
2. The word 'secular' after being added in the Preamble was also considered by a three-judge bench judgment of the court reported as Ziyauddin Burhanuddin Bukhari vs. Bridjmohan Ramdas Mehra and others. This was considering an appeal against the setting aside of elections of the appellant under the 'Representation of the People Act, 1952' to the Maharashtra state assembly on the grounds of speeches made by him during the election campaign. It was held that "the secular state, rising above all differences of religion, attempts to secure the good of all its citizens irrespective of their religious beliefs and practices......"
3. The matter commenced with the restriction of entry of Muslim girls wearing the hijab into the College in Udupi where she was enrolled. The girl even offered to use uniform's scarf/dupatta to cover their heads, arguing that they did not need to put on a separate hijab of a distinct shade or material, but the college refused. The university allowed them to put on hijab on campus but did no longer allow them into lessons.
4. It was told that the said attire was against the school's uniform policy, thereby not allowing them to attend their classes wearing a hijab.
5. Over weeks, this dispute was witnessed in other schools and colleges across the country, with groups of Hindu students staging counter-protests with the claim of permission to wear saffron scarves to educational institutes.
6. On 5th February, the Karnataka government issued an order stating that uniforms ought to be worn compulsorily where policies exist, and no exception may be made for carrying of the hijab. Numerous educational institutions stated this order and denied entry to women of Muslim religion carrying the hijab. Petitions had been filed within the Kerala High Court on behalf of the aggrieved college students.
7. On 10 February, the High Court issued an interim order restraining all college students from wearing any form of religious apparel to educational institutions. This order was made applicable in schools across Karnataka, with college students and, in some cases, instructors being requested to eliminate hijabs and burkas outside the institutions' premises.
8. After a hearing of about 23 hours spread over 11 days, the court passed its verdict on 15th March 2022, upholding the regulations of hijab. The court ruled that the hijab isn't a vital religious Islamic practice.
9. After this ruling was passed, the case was taken to the Supreme Court, where the Honourable Bench passed a split verdict.
    

Laws Involved in the Case

• Article 14 (Equality before Law): The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
• Article 19 (Protection of certain rights regarding freedom of speech, etc.): All citizens shall have the right to freedom of speech and expression, to assemble peacefully and without arms, to form an association of unions, to move freely throughout the territory of India, to reside and settle in any part of the territory of India and to practice any profession or to carry on any occupation, trade or business.
• Article 21 (Protection of life and personal liberty): No person shall be deprived of his life or personal liberty except according to the procedure established by the law.
• Article 21(A) (Right to Education): The State shall provide free and compulsory education to all children of the age of 6 to 14 years in such a manner as the State may by law determine.
• Article 25 (Freedom of conscience and free profession, practice and propagation of religion): Subject to public order, morality and health, and to other provisions of this part, all persons are equally entitled to freedom of conscience and the right to freely possess, practice, and propagate religion.

Issues Involved

1. Whether the appeal should be presented to the constitutional bench in terms of Article 145(3) of the Constitution.
2. Whether the state government could delegate its decision to implement the wearing of uniform by the college development committee or the board of management and whether the government order insofar as it empowers a college development committee to decide on restriction or rehabilitation or otherwise on headscarves violates section 143 of the Act.
3. What is the ambit and scope of the right to freedom of conscience and religion under Article 25?
4. What is the ambit and scope of essential religious practices under Article 25 of the Indian Constitution?
5. Whether fundamental rights of freedom of expression under Article 19(1)(a) and right of privacy under Article 21 are mutually exclusive or complementary to each other, and whether the government order does not meet the injunction of reasonableness under Articles 21 and 14?
6. Whether the government order impinges upon the constitutional promise of fraternity and dignity under the Preamble, as well as fundamental duties enumerated under Article 51(a) subclause (e) and (f).
7. Whether, if the wearing of hijab is considered as an essential religious practice, the student can seek the right to wear a headscarf to a secular school as a matter of right?
8. Whether a student-citizen in the constitutional scheme is expected to surrender her fundamental right under Articles 19, 21, and 25 as a precondition for accessing education in a state institution?
9. Is the state obligated to ensure reasonable accommodation for its citizens in the constitutional scheme?
10. Whether the government order is contrary to the legitimate state interest of promoting literacy and education as mandated under Articles 21, 21A, 39(f), 41, 46, and 51A of the Constitution?
11. Whether the government's order neither achieves any equitable access to education nor serves the ethics of secularism, nor is it true to the objective of the Karnataka Education Act?

Contentions
Appellant:
It was submitted that carrying hijab is an essential religious practice of Islamic religion and therefore any restriction or prohibition imposed by state on wearing hijab is violative of Article 25 of the Constitution.

It was contended that the right to dress in the context of uniform included in the guarantee given under Article 19 of the Constitution, that is right to freedom of speech and expression, and this right can be restricted subject to reasonable restriction. The wearing of hijab is not prejudicial to public interest, thus an explicit violation of right to freedom of speech and expression.

It was submitted that the matters of administration and discipline of the educational institutions fall under the jurisdiction of the authority in charge of such institutions, and the court cannot interfere except in a case of manifest arbitrariness, reasonableness or injustice, which does not satisfy the Wednesbury principle. It was averred that the impinged government order is arbitrary, unreasonable and requires court interference.

It was further submitted that denying entry in educational institutions due to uniform also violates article 29

Respondent:

• It was submitted that the governmental order prohibiting hijab in the educational institution is an unhampered order which is in its entirety religious neutral regarding the alleged violation of Article 19 of the Constitution.
• The state contended that fundamental rights are never absolute, and they can be restricted subject to reasonable restriction. Restriction on wearing hijab in schools and colleges is reasonable restriction.
• The state further submitted that wearing a hijab is not an essential religious practice and therefore imposition of a ban on wearing hijab cannot be regarded as a violation of Article 25 of the Constitution.

Judgment
High Court:
The Karnataka High Court upheld the ban on hijab in educational institutes on 15th March 2022. The court held that the hijab is not always a vital religious practice under Islam and hence is not covered under Article 25 of the Constitution of India, guaranteeing the citizens' fundamental right to exercise their religion.

The High Court carried out independent research on the matter by referring to the Holy Quran by Abdullah Yusuf Ali, which was also referred to by The Sun. Import in Shayara bano case.

According to Abdullah, Yusuf, Ali's burka and hijab were merely for the protection of women from molestation and that hijab is not a religious practice and is much less vital to the Islamic religion.

Supreme Court:
A division bench of the soup. team quote passed a split verdict on the matter in October 2022.

Justice Hemant Gupta upheld the judgment of the High Court by stating that concerning the alleged violation of Article 29 of the Constitution by the state. The view taken by Justice Gupta was that state has not denied admission to the students from attending classes. It was observed that not to attend the classes due to uniform is the choice made by such students voluntarily. Thus, in a secular school, right to wear hijab cannot be claimed as a matter of right, and therefore the impunged order cannot be held as contrary to the principle of secularism.

On the other hand, Justice Sudhanshu Julia passed a verdict opposing the verdict of the High Court stating that discipline is inevitable in educational institutions but discipline cannot be inculcated at the cost of freedom or dignity. In his view its just and proper for a girl child to wear hijab in her house or outside her house and even at school. Prohibition on hijab is an invasion of privacy and dignity of girl child. It is evidently an infringement of the fundamental right guaranteed under Article 19(1)(a) and 21 of the Constitution.

FInally, it is proved that taking off their hijabs before entering the school, is to 1st invade their privacy and violate their dignity. These apparently violate Articles 19(1)(a) and 21. Consequently, the order of the Karnataka High Court is set aside, the impeached government order is revoked and the restriction on wearing hijab anywhere in schools and colleges in Karnataka has been removed.

Conclusion
The hijab row in Karnataka is a complex issue that raised important questions about religious freedom, human rights and the role of the government in enforcing the dress code.

The. Scheme code in this case observed that the issue in hand related to wearing of hijab should not have been dealt with the determining whether it is an essential religious practice or not. This is because there is democracy in the country and educational institutions provide secular education. Moreover, wearing a hijab is not against public order, morality or Hick.

Wearing a hijab also amounts to the privacy of God. Thus, the court held that there would be no restrictions on wearing hijab in their school or college promises and girls would not be denied entering in the premises on this ground with respect to tests of essential religious practice. The court observed that the test was laid down to resolve disputes of a particular nature. These were the cases where the rituals and practices of a particular religion are set sought protection against the interference of the state. The issue at hand was not only the. To the perspectives, but freedom of expression given to citizens under Article 19(1)(a) of the Indian Constitution.

References:

• Supreme Court of India: https://main.sci.gov.in/supremecourt/2022/8344/8344_2022_6_1501_38867_Judgement_13-Oct-2022.pdf
• High Court of Karnataka: https://www.scobserver.in/wp-content/uploads/2022/02/karnataka-high-court-412148.pdf
• Legal services India: https://www.legalserviceindia.com/legal/article-11643-case-analysis-aishat-shifa-v-s-state-of-karnataka.html
• Privacy Law Library: https://privacylibrary.ccgnlud.org/case/aishat-shifa-vs-the-state-of-karnataka-and-others
• Law Corner: https://lawcorner.in/hijab-row-in-karnataka-a-summary/#Facts_of_the_Case