Scholars criticize ruling on school hijab ban
NEW DELHI >> A recent court ruling upholding a ban on Muslim students wearing head coverings in schools has sparked criticism from constitutional scholars and rights activists who say that judicial overreach threatens religious freedoms in officially secular India.
Even though the ban is only imposed in the southern state of Karnataka, critics worry it could be used as a basis for wider curbs on Islamic expression in a country already witnessing a surge of Hindu nationalism under Prime Minister Narendra Modi's governing Bharatiya Janata Party.
“With this judgment, the rule you are making can restrict the religious freedom of every religion,” said Faizan Mustafa, a scholar of freedom of religion and vice chancellor at the Hyderabad-based Nalsar University of Law. “Courts should not decide what is essential to any religion. By doing so, you are privileging certain practices over others.”
Supporters of the decision say it's an affirmation of schools' authority to determine dress codes and govern student conduct, and that takes precedence over any religious practice.
“Institutional discipline must prevail over individual choices. Otherwise, it will result in chaos,” said Karnataka Advocate General Prabhuling Navadgi, who argued the state's case in court.
Before the verdict, more than 700 signatories including senior lawyers and rights advocates had expressed opposition to the ban in an open letter to the chief justice, saying that “the imposition of an absolute uniformity contrary to the autonomy, privacy and dignity of Muslim women is unconstitutional.”
The dispute began in January when a government-run school in the city of Udupi, in Karnataka, barred students wearing hijabs from entering classrooms. Staffers said the Muslim headscarves contravened
the campus' dress code, and that it had to be strictly enforced.
Muslims protested, and Hindus staged counter demonstrations. Soon more schools imposed their own restrictions, prompting the Karnataka government to
issue a statewide ban.
A group of female Muslim students sued on the grounds that their fundamental rights to education and religion were being violated.
But a three-judge panel, which included a female
Muslim judge, ruled last month that the Quran does not establish the hijab as an essential Islamic practice and it may therefore be restricted in classrooms. The court also said the state government has the power to prescribe uniform guidelines for students as a “reasonable restriction on fundamental rights.”
“What is not religiously made obligatory therefore cannot be made a quintessential aspect of the religion through public agitations or by the passionate arguments in courts,” the panel wrote.
The verdict relied on what's known as the essentiality test — basically, whether a religious practice is or is not obligatory under that faith. India's constitution does not draw such a 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 coverings were 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 historical restrictions on Hindu women of certain ages entering a temple in the same state, saying it was not an “essential religious practice.”