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Beyond the hijab ban
The Karnataka government’s decision last week to withdraw the 2022 order of the previous Bharatiya Janata Party government that effectively prohibited hijab in pre-university colleges has been viewed as a constitutional correction. Yet, the withdrawal also exposes a difficult truth: constitutional injuries do not disappear merely because the state retracts a notification.
For the Muslim women who lost years of education and were forced to abandon their academic aspirations because they refused to remove the hijab, the reversal comes after significant damage has already been done, especially in terms of lost educational and professional opportunities.
The testimonies of students such as Aliya Assadi, AH Almast, Resham Farook and Muskan Zainab, who challenged the ban in court, demonstrate that the hijab controversy was never a narrow dispute over uniforms. It was fundamentally about whether constitutional citizenship in India permits visible minority identity in public educational spaces.
The answer offered by the state four years ago was deeply troubling: inclusion would be conditional upon conformity.
The Karnataka government order of February 2022 directed educational institutions to enforce prescribed uniforms and effectively prohibited the hijab wherever it was not officially recognised as part of institutional dress codes.
The order was later upheld by the Karnataka High Court in Resham v State of Karnataka (2022). The court concluded that hijab was not an “essential religious practice” under Islam. This reasoning represented a serious constitutional misdirection.
The issue before the court should not primarily have been whether hijab is theologically essential. The real constitutional question was whether the state could deny students access to classrooms because of a peaceful manifestation of identity that caused no demonstrable disruption to public order or educational functioning.
The Constitution protects individuals, not merely practices approved by judicial rulings. In Bijoe Emmanuel v State of Kerala (1986), the court protected Jehovah’s Witness students who refused to sing the national anthem on grounds of conscience. It maintained that constitutional tolerance requires accommodation of sincerely held beliefs even where majoritarian sentiment disagrees.
In NALSA v Union of India (2014), in which the Supreme Court recognised transgender persons as a “third gender”, the bench held that identity and self-expression were integral to dignity. In Justice KS Puttaswamy v Union of India (2017), which challenged the government’s decision to make Aadhaar mandatory, privacy was interpreted not merely as informational control, but also as decisional autonomy and the freedom to define one’s identity.
The hijab controversy sits squarely within this constitutional framework of dignity and personal autonomy.
One of the most erratic aspects of the Karnataka High Court judgment in 2022 was its understanding of uniformity as a constitutional virtue in itself. But Indian constitutionalism has never treated equality as homogenisation.
Article 14 of the Constitution guarantees equality before law, but constitutional jurisprudence has long recognised that substantive equality often requires accommodation of difference.
The Supreme Court in Navtej Singh Johar v Union of India (2018) warned against constitutional morality being replaced by social morality or majoritarian expectations when it decriminalised consensual same-sex relations between adults.
Likewise, in Indian Young Lawyers Association v State of Kerala (2018), the Supreme court held that practices rooted in stigma, stereotypes, or exclusion cannot override constitutional guarantees of equality, dignity, and individual freedom. The case related to the prohibition on women of menstruating age from entering the Sabarimala temple in Kerala.
The hijab ban effectively imposed a model of “neutrality” that disproportionately burdened Muslim women. It transformed the classroom into a space where minority identity had to become invisible in order to be acceptable.
However, Indian secularism has historically been accommodative rather than exclusionary. The Constitution does not demand erasure of identity in exchange for citizenship. Indian secularism has evolved around principled coexistence. Sikhs wear turbans in uniformed services. Hindu students display religious symbols.
Christian institutions retain visible religious practices. Supporters of hijab restrictions often invoke Europe to justify bans. But European constitutional experience is far more contested than popularly portrayed.
In 2004, France prohibited conspicuous religious symbols in public schools, invoking its doctrine of laïcité, which seeks strict exclusion of religion from public spaces. The European Court of Human Rights, in 2005 upheld restrictions on Islamic headscarves and other visible religious symbols in educational institutions by granting states a “margin of appreciation” in matters involving secularism.
However, scholars across Europe have argued that such restrictions disproportionately marginalise Muslim women and reduce their participation in public life. In several cases, bans have pushed women out of educational and professional spaces.
Importantly, India’s constitutional structure is fundamentally different from the French model. The Indian Constitution was designed for deep diversity, not enforced cultural neutrality. BR Ambedkar’s constitutional vision was not assimilationist republicanism but plural constitutional citizenship. India cannot selectively borrow European restrictions while ignoring its own constitutional philosophy.
The hijab litigation exposed the doctrinal problem of the “essential religious practices” test as developed in Shirur Mutt (1954), the doctrine that authorises courts to determine which religious practices are “essential” enough to deserve constitutional protection.
However, over the decades, this has transformed judges into theological arbiters rather than constitutional adjudicators. Constitutional rights become dependent upon judicial interpretation of scripture rather than individual liberty. A student’s access to education should not depend upon whether the courts consider her attire sufficiently “essential” to religion.
The Karnataka government’s withdrawal of the order is welcome, but it cannot be the endpoint.
Students who were forced to drop out because of the policy deserve institutional rehabilitation through re-enrolment support, scholarship programmes, bridge courses and special examination opportunities.
More importantly, educational institutions across India require clear constitutional guidelines rooted in reasonable accommodation rather than coercive uniformity. Educational institutions are not factories of cultural homogeneity. Rather they are constitutional spaces where plurality must coexist.
The lesson from Karnataka is not merely about hijab. It is about the fragility of constitutional rights during moments of majoritarian mobilisation. When the state prioritises symbolic political assertion over inclusive governance, marginalised citizens pay the price first.
Shashank Shekhar is an assistant Professor of Law, Lloyd Law College in Greater Noida and a research scholar at the Faculty of Law at Jamia Millia Islamia in New Delhi.
Source: Scroll
Related Posts: India, Opinion, Hijab bank India, Karnataka hijab, Muslim women India, Muslim women education India
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