In-depth analysis of the Indian Supreme Court's judgment on the Karnataka hijab ban, examining arguments related to religious freedom, education, and secularism

In deciding the appeal related to the Karnataka hijab ban the Supreme Court’s Division bench by Justice Hemant Gupta and Justice Sudhanshu Dhulia had divergent views in delivering the judgement which refers back to the CJI for constitution of an appropriate bench, however, the observations made by both the judges can be summarizes as follows:
The case originates from a February 2022 Government Order of Karnataka Government mandating uniforms in Karnataka schools and other institutions. This order led to certain government pre-university colleges prohibiting female students wearing hijabs from attending classes.

The two judge bench of Supreme Court, on the appeals of Aishat Shifa and Tehrina Begum, took up the matter for hearing where students denied entry to their college in Udupi for wearing hijabs. The Apex Court examines whether the government order infringes upon the students' fundamental rights under Articles 19(1)(a), 21, and 25 of the Indian Constitution, concerning freedom of expression, privacy, and religious freedom, respectively.

The Court extensively analyzes previous judgments related to essential religious practices, the scope of Article 19(1)(a), 21 & 25, and the balance between individual rights and state regulation in educational institutions.

On scrutinizing the Government Order, Justice Sudhanshu Dhulia expressed concerns regarding its potential impact on students' fundamental rights. Whereas Justice Hemat Gupta reasoned the ban to “Derivative Rights” and its application to the expression of fundamental rights within educational institutions. While the term itself isn't formally defined, the judgment's majority opinion, authored by Justice Hemant Gupta, uses it to convey the idea that the exercise of certain fundamental rights might be subject to limitations in specific settings, including schools.

However, Justice Sudhanshu Dhulia held that although the order ostensibly aims to maintain order in schools, its indirect consequences could infringe upon the rights of students to express their religious beliefs freely. This analysis underscores the Court's role in safeguarding fundamental rights, even when state actions have indirect implications.

Justice Sudhanshu Dhulia, in his dissenting opinion, directly challenges this notion, asserting that classifying fundamental rights as "derivative" within a school setting is inherently flawed. He emphasizes that students do not surrender their fundamental rights at the school gate.

This difference in perspective is central to the court's split decision on the hijab ban. Justice Gupta's opinion frames schools as "qualified public places" where individual rights might need to be balanced against the broader goals of discipline and decorum. This reasoning allows for restrictions on expressions of individuality if they are deemed to disrupt the intended function of the school environment.

Conversely, Justice Shudanshu Dhulia emphasizes the enduring nature of fundamental rights, arguing that they are neither surrendered nor transformed into "derivative" forms within the school environment. This view suggests a higher threshold for justifying restrictions on personal expression, demanding a more direct and demonstrable threat to the school's educational objectives.

The judgment does not offer a conclusive answer to whether the "derivative rights" concept is legally sound or how it might be applied in other contexts. The divided court highlights the complexity of navigating individual rights within shared spaces and underscores the need for careful consideration of proportionality when restrictions on fundamental freedoms are proposed.

In the examination of legal reasoning taken by the Karnataka High Court about “Reasonable Accommodation”, Justice Hemant Gupta opined in favour of same through various case references. On contrary to that Justice Shudanshu Dhulia referenced the doctrine of "Reasonable Accommodation" and observed “It does not appeal to my logic or reason as to how a girl child who is wearing a hijab in a classroom is a public order problem or even a law-and order problem. To the contrary reasonable accommodation in this case would be a sign of a mature society which has learnt to live and adjust with its differences.”.

And expressed that while this principle encourages institutions to make adjustments to accommodate individuals' religious practices, its application is context-specific. Therefore, assessed whether prohibiting the hijab in classrooms could be considered a "reasonable accommodation" in light of the specific circumstances of the case.

The Court also addressed the interpretation of "essential religious practices." While acknowledging the complexities associated with defining and determining such practices, it underscored the need for caution when engaging in theological inquiries and that the Courts should exercise restraint and avoid imposing their interpretations of religious doctrines. Instead, they should focus on whether state actions unjustly restrict individuals' ability to practice their religion.

Important Topics Discussed in the Court's Observations

• Balance Between Education and Fundamental Rights: The court emphasizes that the right to education is essential but not absolute. It must be balanced with other fundamental rights such as freedom of expression, privacy, and religion which students retain even within the school environment. The court challenges the view that these rights are demoted to "derivative rights" inside the school gates. This balancing act requires careful consideration of the context and potential consequences of policies like dress codes.

• Reasonable Accommodation and its Limits: The court examines the concept of "reasonable accommodation," highlighting its importance in a diverse society. It raises the question of whether prohibiting the hijab in classrooms constitutes "reasonable accommodation" of religious practices. This analysis emphasizes the need for a nuanced approach that weighs individual rights against institutional interests in specific situations.

• Essential Religious Practices (ERP) and Judicial Restraint: The court touches upon the complex issue of defining "essential religious practices." While acknowledging the need to determine ERP in certain cases, it advises caution against courts becoming deeply involved in theological interpretations. It emphasizes that the judiciary should exercise restraint, focusing on whether state actions unfairly hinder the ability of individuals to practice their chosen religion without delving into theological debates.

• Constitutional Rights and Decisional Autonomy: The court emphasizes the importance of upholding students' fundamental rights, particularly their decisional autonomy. It acknowledges the significance of personal choices, such as choosing one's attire, as expressions of identity and autonomy. This recognition aligns with the court's stance on respecting individual choices within the bounds of the law, particularly when those choices concern personal expression and belief. However, the provided text does not explicitly use the term "decisional autonomy," so you may want to verify this connection independently.

• Impact on Education and the Right to Choose: The court voices concerns about the potential negative effects of the hijab ban on girls' education. This concern highlights the broader implications of such policies, particularly their impact on inclusivity and accessibility to education. It underscores the court's role in safeguarding the right to education, ensuring it remains accessible and equitable for all, regardless of their religious or cultural background.

• Uniformity vs. Diversity in Educational Spaces: The court seems to challenge the idea of equating uniformity in dress with unity or discipline. This challenges the rationale behind strict dress codes, suggesting that diversity in how students choose to appear can coexist with a respectful learning environment. This perspective emphasizes the value of a pluralistic society and encourages schools to embrace and celebrate such diversity rather than imposing strict uniformity.

Justice Shudanshu Dhulia while referring to the observations on ‘Decisional Autonomy’ made by the Hon’ble Chief Justice D.Y Chandrachud in case of K.S Puttaswamy, held that “248. Privacy has distinct connotations including (i) spatial control; (ii) decisional autonomy; and (iii) informational control. [Bhairav Acharya, “The Four Parts of Privacy in India”, Economic & Political Weekly (2015), Vol. 50 Issue 22, at p. 32.] Spatial control denotes the creation of private spaces. Decisional autonomy comprehends intimate personal choices such as those governing reproduction as well as choices expressed in public such as faith or modes of dress… xxx xxx xxx 297. …Privacy enables each individual to take crucial decisions which find expression in the human personality. It enables individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demands of homogeneity. Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity in creating a zone of solitude. Privacy protects the individual from the searching glare of publicity in matters which are personal to his or her life. Privacy attaches to the person and not to the place where it is associated. Privacy constitutes the foundation of all liberty because it is in privacy that the individual can decide how liberty is best exercised. Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural culture.”

The judgment stresses the importance of fraternity and the need for a balance between individual rights and the larger societal goal of promoting education and unity. And while underscoring the paramount importance of the right to education, this Supreme Court Judgement, however divergent, emphasized that it should not be compromised.

This right, however, does not eclipse other fundamental rights. Justice Shudanshu Dhulia recognized that students retain their fundamental rights, including those to freedom of expression, privacy, and religion, even within educational settings. It rejected the notion that these rights are somehow diminished or transformed into "derivative rights" within the school environment.

The Court also considered the international jurisprudence, referencing cases from, United States, South Africa and the United Kingdom.

The judgment emphasizes that:
• The right to education is central and should not be compromised.
• Students retain their fundamental rights, including those to freedom of expression, privacy, and religion, even within educational settings. These are not "derivative rights."
• While uniforms can promote discipline, this goal must be balanced against the rights of minorities to express their religious and cultural identities.
• Government order, while focusing on maintaining order in schools, may indirectly impact students' fundamental rights.

Acknowledging that uniforms can serve a legitimate purpose in promoting discipline and order within schools, nevertheless, the Justice Shudanshu Dhulia stressed the need to balance this objective against the rights of minorities. Students from diverse backgrounds should not be compelled to sacrifice their religious and cultural identities to conform to a uniform dress code. The Court highlighted the significance of diversity and inclusivity in educational institutions and in the result the matter is referred to placed before be placed before Hon’ble The Chief Justice of India for constitution of an appropriate Bench.

CIVIL APPEAL NO. 7095 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 5236 OF 2022) et al.

Coram: Hon’ble Justice Hemant Gupta and Justice Sudhanshu Dhulia.
Dated:13th October 2022