Hijab row: Indirect discrimination at the centre of the ongoing legal tangle
The petitioners, three female Muslim students, had approached the apex court challenging the judgment of a division bench of the Bombay high court in June
On August 9, the Supreme Court of India (SC) partly stayed the instructions regarding the dress code to be followed by students issued by Chembur Trombay Education Society’s NG Acharya and DK Marathe College, a private college in Mumbai. The circular prohibited students from revealing anyone’s religion by wearing a“burkha, nakab, hijab, cap, badge, stole etc.” on campus. Interestingly, while hearing the matter, Justice Khanna orally remarked, asking whether tilak and bindi would be disallowed as well and further enquiring how women are being empowered by the college telling them what to wear.
The restriction on wearing hijab is of constitutional significance as it is violative of Article 19(1)(a), the right to freedom of speech and expression and Article 25(1), which guarantees that every person shall have freedom of conscience and the right to profess, practice and propagate religion, subject to certain restrictions which are public order, morality and health. Further, forcing students to remove their hijab before entering a classroom is also an invasion of their privacy and a violation of their dignity which are also protected under Article 21 of the Indian Constitution.
The petitioners, three female Muslim students, had approached the apex court challenging the judgment of a division bench of the Bombay High Court in June 2024 (Zainab Abdul Qayyum Choudhary & Ors. v. Chembur Trombay Education Society's NG Acharya and DK Marathe College and Ors.) which had dismissed their writ petition and upheld the college’s instructions. The High Court stated that it was in the “larger academic interest of the students as well as for the administration and discipline of the college” that the objective that a student’s religion ought not to be revealed is achieved. The Supreme Court’s interim order staying the circular brings back the limelight on the hijab ban on university campuses.
In October 2022, in Aishat Shifa v. The State of Karnataka (2022) a division bench of the apex court delivered a split verdict on a batch of appeals challenging the restriction on female Muslim students from wearing a hijab or headscarf in educational institutions in Karnataka.
Justice Sudhanshu Dhulia set aside the judgment of the Karnataka High Court and held that wearing a hijab should be simply a matter of choice. Dhulia further noted that whether the hijab was an essential religious practice under Islam was not the central question of the dispute, but instead, the issue was a matter of conscience, belief, and expression.
Further emphasis was placed on the issue that a girl child had the right to wear hijab in her house or outside and that right did not stop at the school gate. A female Muslim student retains her fundamental rights and carries her dignity and privacy even inside the school gates, and it would be incorrect to say that these rights become derivative rights inside a classroom.
On the other hand, Justice Hemant Gupta upheld the constitutional validity of the government order and held that the freedom of expression guaranteed under Article 19(1)(a) of the Constitution did not extend to the wearing of a headscarf. Gupta further went on to hold that since the State has not put a restriction on the exercise of the right conferred under Article 19(1)(a) but had regulated the same in a manner that during school hours on working days and in class, the students shall wear the uniform as prescribed.
Since it was a regulatory provision for wearing a uniform, therefore, the decision of the State government mandating that students wear the uniform as prescribed did not violate the freedom guaranteed under Article 19(1)(a), rather it reinforced the right to equality under Article 14. Given the starkly diverging views expressed by the division bench, the matter was referred to be placed before the Chief Justice of India (CJI) for the constitution of an appropriate bench.
Previously, the Karnataka High Court had in Resham v. State of Karnataka and Ors. (2022) upheld a Karnataka government order issued under the Karnataka Education Act, 1983 banning the wearing of hijabs in classrooms, by holding that wearing a hijab was not part of an essential religious practice under Islam. The High Court also held that the hijab would not be covered under the principle of reasonable accommodation as it would lead to a sense of “social separateness” and also goes against the feeling of uniformity.
In its 2020 landmark judgement of Lt.Col. Nitisha and Ors. v. Union of India, the Supreme Court explicitly recognised the principle of indirect discrimination. Indirect discrimination can be described as a form of discrimination in which a facially neutral or supposedly neutral criteria or provision is applied ‘uniformly’ to all persons, but in reality, disproportionately affects and disadvantages a particular group of people who share a protected characteristic such as religion and gender identity. The ban on wearing hijab is a prime example of indirect discrimination which disproportionately affects female Muslim students due to their religious and gender identities, with the prescribed uniform being the neutral criterion applicable to all students.
As the appeal against the judgement by the Bombay High Court proceeds in the Supreme Court, the court will hopefully examine this intersectional matter through the lens of indirect discrimination. In a secular republic where the freedom of religion is guaranteed, the contention of the college authorities that their goal is to prevent students from revealing their religion makes little sense. The primary concern of the court ought to be to prioritise the fundamental rights, dignity, agency, and privacy of the petitioners while they pursue their education.
Avanti Deshpande is a lawyer and researcher. Her interests include human rights law, criminal law, and gender justice. The views expressed are personal
On August 9, the Supreme Court of India (SC) partly stayed the instructions regarding the dress code to be followed by students issued by Chembur Trombay Education Society’s NG Acharya and DK Marathe College, a private college in Mumbai. The circular prohibited students from revealing anyone’s religion by wearing a“burkha, nakab, hijab, cap, badge, stole etc.” on campus. Interestingly, while hearing the matter, Justice Khanna orally remarked, asking whether tilak and bindi would be disallowed as well and further enquiring how women are being empowered by the college telling them what to wear.
The restriction on wearing hijab is of constitutional significance as it is violative of Article 19(1)(a), the right to freedom of speech and expression and Article 25(1), which guarantees that every person shall have freedom of conscience and the right to profess, practice and propagate religion, subject to certain restrictions which are public order, morality and health. Further, forcing students to remove their hijab before entering a classroom is also an invasion of their privacy and a violation of their dignity which are also protected under Article 21 of the Indian Constitution.
The petitioners, three female Muslim students, had approached the apex court challenging the judgment of a division bench of the Bombay High Court in June 2024 (Zainab Abdul Qayyum Choudhary & Ors. v. Chembur Trombay Education Society's NG Acharya and DK Marathe College and Ors.) which had dismissed their writ petition and upheld the college’s instructions. The High Court stated that it was in the “larger academic interest of the students as well as for the administration and discipline of the college” that the objective that a student’s religion ought not to be revealed is achieved. The Supreme Court’s interim order staying the circular brings back the limelight on the hijab ban on university campuses.
In October 2022, in Aishat Shifa v. The State of Karnataka (2022) a division bench of the apex court delivered a split verdict on a batch of appeals challenging the restriction on female Muslim students from wearing a hijab or headscarf in educational institutions in Karnataka.
Justice Sudhanshu Dhulia set aside the judgment of the Karnataka High Court and held that wearing a hijab should be simply a matter of choice. Dhulia further noted that whether the hijab was an essential religious practice under Islam was not the central question of the dispute, but instead, the issue was a matter of conscience, belief, and expression.
Further emphasis was placed on the issue that a girl child had the right to wear hijab in her house or outside and that right did not stop at the school gate. A female Muslim student retains her fundamental rights and carries her dignity and privacy even inside the school gates, and it would be incorrect to say that these rights become derivative rights inside a classroom.
On the other hand, Justice Hemant Gupta upheld the constitutional validity of the government order and held that the freedom of expression guaranteed under Article 19(1)(a) of the Constitution did not extend to the wearing of a headscarf. Gupta further went on to hold that since the State has not put a restriction on the exercise of the right conferred under Article 19(1)(a) but had regulated the same in a manner that during school hours on working days and in class, the students shall wear the uniform as prescribed.
Since it was a regulatory provision for wearing a uniform, therefore, the decision of the State government mandating that students wear the uniform as prescribed did not violate the freedom guaranteed under Article 19(1)(a), rather it reinforced the right to equality under Article 14. Given the starkly diverging views expressed by the division bench, the matter was referred to be placed before the Chief Justice of India (CJI) for the constitution of an appropriate bench.
Previously, the Karnataka High Court had in Resham v. State of Karnataka and Ors. (2022) upheld a Karnataka government order issued under the Karnataka Education Act, 1983 banning the wearing of hijabs in classrooms, by holding that wearing a hijab was not part of an essential religious practice under Islam. The High Court also held that the hijab would not be covered under the principle of reasonable accommodation as it would lead to a sense of “social separateness” and also goes against the feeling of uniformity.
In its 2020 landmark judgement of Lt.Col. Nitisha and Ors. v. Union of India, the Supreme Court explicitly recognised the principle of indirect discrimination. Indirect discrimination can be described as a form of discrimination in which a facially neutral or supposedly neutral criteria or provision is applied ‘uniformly’ to all persons, but in reality, disproportionately affects and disadvantages a particular group of people who share a protected characteristic such as religion and gender identity. The ban on wearing hijab is a prime example of indirect discrimination which disproportionately affects female Muslim students due to their religious and gender identities, with the prescribed uniform being the neutral criterion applicable to all students.
As the appeal against the judgement by the Bombay High Court proceeds in the Supreme Court, the court will hopefully examine this intersectional matter through the lens of indirect discrimination. In a secular republic where the freedom of religion is guaranteed, the contention of the college authorities that their goal is to prevent students from revealing their religion makes little sense. The primary concern of the court ought to be to prioritise the fundamental rights, dignity, agency, and privacy of the petitioners while they pursue their education.
Avanti Deshpande is a lawyer and researcher. Her interests include human rights law, criminal law, and gender justice. The views expressed are personal