CLPR on behalf of Women’s Voice, an organization which works specifically for the rights of marginalized women filed a Special Leave Petition in the Supreme Court challenging the order dated 15.03.2022 passed by the Hon’ble High Court of Karnataka in Writ Petition No. 2347 of 2022. The judgement not only held that the wearing of Hijab by Muslim women does not form a part of essential religious practice in Islamic faith, but also that the prescription of school uniforms which prohibit head scarves is a reasonable restriction and that it does not violate Articles 14, 15, 19(1)(a), and 21 of the Constitution of India, and that the Government Order dated 05.02.2022 which prohibits head scarves in universities is valid.
The SLP was filed on three major grounds that:
- The Hon’ble High Court failed to recognise indirect discrimination and the violation of substantive equality under Article 14 of the Constitution of India which were recognised by the Supreme Court in Nitisha v. Union of India, 2021 SCC OnLine 261;
- Muslim girls have been placed at a unique disadvantage both by being female and by belonging to a certain faith which requires the wearing of the headscarf thereby being discriminated under Article 15 of the Constitution of India on the grounds of both SEX and RELIGION;
- India has the duty to respect international law obligations under the convention for elimination of all forms of discrimination against women (‘CEDAW”) which prohibit discriminatory policies against women.
Ms Jayna Kothari, Senior Advocate argued that mere formal equality where all religious symbols are not allowed in educational institutions would not be enough and expounded on substantive equality under Article 14. It was submitted that the G.O. dated 05.02.2022 and the action of the institutions in issuing uniforms policies, may appear neutral and inoffensive on the face of it, but is discriminatory in operation. This indirect discrimination is against women of the Muslim community as it is only the wearing of the headscarf / hijab which is worn by Muslim girls, which is prohibited and girls wearing the hijab have been refused entry into the colleges and schools. Cases such as Lt. Col. Nitisha and Ors. v. Union of India, 2021 SCC OnLine 261 and Madhu & Anr. V. Northern Railways & Ors., 2018 SCC OnLine Del 6660 which have held that it is the duty of the Courts to see whether the action of the State has a disparate impact on women and that right to equality under Article 14 guarantees substantive equality where all persons require equal concern and equal respect and recognises that sometimes it is fair to treat people differently.
It was submitted that both ‘sex’ and ‘religion’ are protected grounds of discrimination under Article 15 (1) of the Constitution. Muslim girls are the only ones facing the disadvantage and hence discrimination has to be viewed from the angle of multiple discrimination or intersectional discrimination as laid down in the case of Patan Jamal Vali v. The State of Andhra Pradesh, 2021 SCC OnLine 343. In this instant case the persons who are disadvantaged are Muslim girls and hence they are discriminated both on grounds of sex and religion, which are both prohibited under Article 15(1) the Constitution of India.
Lastly, it was contented that CEDAW is rooted to reaffirm faith in fundamental human rights, dignity, worth, and equal rights of women and girls. It is the duty of the State under Article 51(c) of the Constitution of India to ensure that such international obligations are respected. Articles 2 and 3 of CEDAW prohibit discrimination against women in all forms and mandates the State to ensure that appropriate action is taken to eliminate discriminatory policies and practices against women including in public institutions. That being the case, the Government ought to have ensured that Muslim women are not discriminated and allowed to enter the universities. Various petitions challenging the said Karnataka High Court judgment were clubbed together and heard by the Supreme Court for 9 continuous days.
On 13.10.2022, Justices Hemant Gupta and Sudhanshu Dhulia delivered a split verdict in the Karnataka Hijab Ban case. Justice Gupta, on his penultimate day at the Supreme Court before retirement, held that the Karnataka High Court decision upholding the ban was correct. He dismissed all appeals to the High Court decision.
Justice Dhulia, however, stated that the High Court decision must be reconsidered. He quashed the Government Order which led to the Hijab Ban. He stated that the cause of educating the girl child weighed heavily on his mind while writing his opinion. Notably, Justice Dhulia stated that the High Court ‘took the wrong path’ by basing its decision on the essentiality of the hijab to Islam. Instead, equality and free expression should have been the focus, he said. ‘It is a matter of choice, nothing more nothing less.’, he stated.
The case has now been referred to the Chief Justice to place the case before an appropriate Bench.