Of a Uniform Dress Code

EVER SINCE the hijab controversy broke out last month, popular debates across platforms and portals both within Bharat and abroad have generalised the issue as one that relates to discrimination against a particular religious minority, instead of examining the specifics of the row in Karnataka. The issue at hand is nowhere close to or even remotely comparable to France’s hijab ban, so let’s start with what educational institutions in Karnataka are permitted by law before we look into what transpired on the ground.

The legislation that governs educational institutions in Karnataka is the Karnataka Education Act of 1983 which has been in force since January 20th, 1995. Under Section 133, the state government may issue any direction to any educational institution to achieve the purpose of the Act. Further, as is the case with most legislation, the 1983 Act also contains a specific provision, namely Section 145, which empowers the state government to frame rules. Under this provision, the Karnataka Educational Institutions (Classification, Regulation and Prescription of Curricula Etc) Rules, 1995 were notified. Here is Rule 11 which applies to the issue at hand (emphases added):

“11. Provision of Uniform, Clothing, Text Books etc., (1) Every recognised educational institution may specify its own set of Uniform. Such uniform once specified shall not be changed within the period of next five years.

(2) When an educational institution intends to change the uniform as specified in sub-rule (1) above, it shall issue notice to parents in this regard at least one year in advance.

(3) Purchase of uniform clothing and text books from the school or from a shop etc., suggested by school authorities and stitching of uniform clothing with the tailors suggested by the school authorities, shall be at the option of the student or his parent. The school authorities shall make no compulsion in this regard.”

Section 2(30) defines a “recognised educational institution” as an educational institution recognised or deemed to be recognised under the Act. When Section 2(30) is read along with Rule 11, this much is clear that a recognised educational institution in Karnataka has the power to prescribe its own uniform, which also includes the power to identify what does not constitute uniform. What does this translate to?

First, it is no one’s case thus far that this power is not available to the institutions in Udupi which are at the centre of the controversy. Second, on the face of it, there appears to be no fetter on the power of these institutions to lay down a dress code so long as it is reasonable. Third, no one has been able to demonstrate that these institutions have laid down any rule, much less enforced one, which targets any one community.

Fourth, the power vested in recognised educational institutions under Rule 11 has not been called into question on grounds of unconstitutionality for vesting excessive power in schools. This is not to say that the rule cannot be challenged now; however, the point being made is that, legally, until the rule exists and is applied across the board to students of all faiths, it makes no sense whatsoever to argue that since the wearing of the hijab does not affect anyone, it should be permitted. After all, this undermines the purpose of a “uniform” whose underlying intent is to ensure that religious differences do not stand out in a classroom to the extent possible. Of course, it is open to an institution to permit visible religious symbols over and above the uniform, but it equally reserves the right to proscribe it.

On the limited power of Courts to interfere with the internal administration of educational institutions, here’s an observation by the Madras High Court in Sir M. Venkata Subba Rao vs Sir M. Venkata Subba Rao (2004) wherein a dress code laid down for teachers by a school was the subject of challenge (emphases added):

“12. On a combined reading of the above provisions, it is seen that the Board of Matriculation Schools has the overall control as to the maintenance of the school and also to issue directions from time to time to the teachers, and on such directions, the teachers shall confirm to the same. The power of the management of the school to issue the impugned circular prescribing dress code shall be traceable to clause 6 of Annexure VIII (Agreement). In that view of the matter, we do not find any merit in the contention of the learned counsel for appellant that the respondent-school management has no power to issue circulars prescribing the dress code.

13. The next question to be considered is, how far the imposition of dress code would be reasonable. As we have emphasised the need for education and correspondingly the responsibility of a teacher in bringing up a student to be useful to the nation, we consider that the Court would be very slow in interfering with the internal administration of the management of the school, more particularly, in the matter of discipline. We have already traced out the power of the management to issue circulars prescribing dress code. A perusal of the circular reveals that the dress code is uniformly made applicable to all the teachers. We do not find any discrimination in this regard. Regulation of a dress code is only to maintain uniformity in discipline. In the absence of any discrimination, we do not find that the dress code could be called as unreasonable restriction warranting any challenge before this Court. Hence, we do not find any merit in the submission of the learned counsel for appellant that the dress code is unreasonable.

… A vague statement of victimisation cannot be a ground to interfere with the order, more particularly, when the circular is sought to be enforced uniformly on all the teachers without any discrimination. When the dress code is insisted on each and every teacher without any exception in order to follow uniformity in discipline, we do not find any interference is required in the challenge to the impugned circular. The dress code introduced is ultimately for the interest and welfare of the students. If the matter is viewed in the light of the observations made above, no interference is called for in the challenge to the order in the writ petition.”

In 2002, in a case whose factual matrix is similar to that of the Karnataka controversy, following were the observations of the Division Bench of the Bombay High Court in Miss Fathema Hussain Sayed vs Bharat Education Society And Ors. (emphases added):

“2. The petitioner Ms. Fathema Hussain Sayed (minor) is a student of standard VI in Karthika English School (respondent No.2). It is her case that she was asked by the Principal of the School to not to attend class from 28.11.2001 if she wore the head scarf. This direction given by the Principal to the petitioner on 28.11.2001 is under challenge in this writ petition. The petitioner says that she hails from Muslim family and follows the Islam religion and since the Holy Quran provides that a female child after 9 years of age should cover her head by scarf, she started wearing head-scarf from June, 2001. According to her, head-scarf does not violate the dress code or the discipline of respondent No.2 school and therefore, the direction given by the Principal on 28.11.2001 is violative of petitioner’s fundamental right of freedom of conscience and professing, propagating and practicing Islam religion

…we find it difficult to accept the submission of the learned counsel that by not permitting the petitioner to wear head-scarf, the fundamental right of the petitioner under Article 25 is violated…

There appears to be no fetter on the power of institutions to lay down a dress code so long as it is reasonable. No one has been able to demonstrate that these institutions have laid down any rule, much less enforced one, which targets any one community

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6. By asking petitioner who is student in class VIth standard of respondent No.2 school to maintain the dress code prescribed by the school, how can it be said that the petitioner’s fundamental right of freedom of conscience and free profession, practice and propagation of religion is violated…There does not seem to be such established practice and profession of the Islam religion from covering their heads by the girls studying in all-girls school. The learned counsel for the petitioner however, sought to place reliance upon verse 31 of chapter 24-64 of Holy Quran (Quran-E-Majid). Verse 31 reads thus- “31. And say to the believing women that they cast down their looks and guard their private parts and not display their ornaments except what appears thereof, and let them wear their head-coverings over their bosoms, and not display their ornaments except to their husbands or their fathers, or the fathers of their husbands, or their sons, or the sons of their husbands, or their brothers, or their brothers’ sons, or their sisters’ sons, or their women, or those whom their right hands possess, or the male servants not having need (of women), or the children who have not attained knowledge of what is hidden of women; and let them not strike their feet so that what they hide of their ornaments may be known; and turn to Allah all of you, O believers! so that you may be successful.

7. A girl student not wearing the head-scarf or head covering studying in exclusive girls section cannot be said to in any manner acting inconsistent with the aforesaid verse 31 or violating any injunction provided in Holy Quran. It is not an obligatory overt act enjoined by Muslim religion that a girl studying in all girl section must wear head-covering. The essence of Muslim religion or Islam cannot be said to have been interfered with by directing petitioner not to wear head-scarf in the school.

8. We, therefore, do not find any merit in the contention of the learned counsel for the petitioner that direction given by the Principal to the petitioner on 28.11.2001 to not to wear head-scarf or cover her head while attending school is violative of Article 25 of Constitution of India.”

Of course, it could be argued that the above judgment was delivered in the context of an all-girls school. However, what is relevant is the finding that wearing of a headscarf is not mandated by or essential to the practice of Islam regardless of the nature of the school. Interestingly, Justice A Muhamed Mustaque of the Kerala High Court has held to the contrary in 2016 in Amnah Bint Basheer vs Central Board of Secondary Education. This was a case where the dress code prescribed by the CBSE for the All-India Pre-Medical Test was challenged by a Muslim student for disallowing the headscarf. After examining the Quran and the Hadith on the subject, Justice Mustaque held as follows:

“29. Thus, the analysis of the Quranic injunctions and the Hadiths would show that it is a farz to cover the head and wear the long sleeved dress except face part and exposing the body otherwise is forbidden (haram). When farz is violated by any action opposite to farz that action becomes forbidden (haram). However, there is a possibility of having different views or opinions for the believers of the Islam based on ijithihad (independent reasoning). This Court is not discarding such views. The possibility of having different propositions is not a ground to deny the freedom, if such propositions have some foundation in the claim. As has been adverted above, the claim of the petitioners is well founded even though, a different view is possible. This Court is only expected to safeguard such freedom based on the Constitution in preference to giving a religious verdict.

30. The discussions as above would show that covering the head and wearing a long sleeve dress by women have been treated as an essential part of the Islamic religion. It follows a fortiori, Article 25(1) protects such prescription of the dress code. Then the only question remains is the essential practice as above would offend the public order, morality, and health or is it necessary to regulate such essential practice to give effect to other provisions of Part III of the Constitution…

In the facts of the Karnataka hijab controversy, rule 11 of the 1995 rules categorically bestows upon recognised educational institutions the power to prescribe a uniform dress code, which cannot be diluted to accommodate the interest of any single community or individual

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31. The rationale for prescribing dress code by the Board is to avoid malpractices in the examination. The prescription as above is not by invoking an interest of public order or morals of the society. The public order is one which would affect community or public at large. The morality is pertaining to conscience or moral sense of the prescribed standards in the society. The health denotes well-being of a person. The restriction by the Board can be only on any grounds referred as above. In the absence of any conditions referable under Article 25(1), the essential practice cannot be regulated or restrained. No doubt, a restriction can be imposed under Article 19(2) of the Constitution in the interest of the security of the State as contemplated under Article 25(1) which also states the freedom would be subject to the provisions of Part III of the Constitution.

32. The right of women to have the choice of dress based on religious injunctions is a fundamental right protected under Article 25(1), when such prescription of dress is an essential part of the religion. As has been noted above, that right can be negated only in any of the circumstances referred under Article 25(1). The attempt of the Board to ensure transparency and credibility of the examinations also cannot be ignored by this Court. However, the approach of the Court is always to harmoniously accommodate the competing interest without there being any conflict or repugnancy. The interest of the Board can be safeguarded by allowing the invigilator to frisk such candidates including by removing scarf. However, safeguard has to be ensured that this must be done honouring the religious sentiments of the candidates. Therefore, women invigilators can be permitted to frisk such candidates.

35. This Court already found that the right to practice the essential part of the religion as guaranteed under Article 25(1) is a negative liberty which means the person is insulated from interference by the authority or the State except in situations referred therein. Therefore, the Board cannot restrict the claim of any similarly situated persons.

36. However, the practical difficulty in implementing the direction of this Court has to be considered. This Court taking note of the practical difficulty of the Board for the conduct of the examination during the last year, in W.P.(C).No.21696/2015 had provided sufficient safeguards. This Court is of the view that the same can be followed for this year as well, and the Board can take necessary steps for the next year onwards, while inviting applications itself, to protect such rights. It is to be noted practical difficulty cannot be an excuse to honor the fundamental rights. Therefore, this Court is of the view that for this year the Board shall permit all candidates, who based on the religious practice want to wear head scarf and full sleeved length dress, to appear for the exams.

37. This Court need not interfere with the dress code prescription as referred in the Board’s prospectus as others are bound by such prescription except to hold that the dress code as above shall not be enforced against the candidates, who by virtue of Article 25(1) are protected from wearing such dress as prescribed in the injunctions of their faith. The writ petition is allowed and disposed of by granting relief as ordered in W.P. (C).No. 21696/2015 to all who fall within the same class as protected under Article 25(1). It is made clear that all such candidates will have to report at the Centre at least half an hour before the schedule time.”

What is critical to note is the timing of this controversy and the fact that until December 2021, neither was the hijab worn by Muslim students in these institutions nor was the enforcement of the rule questioned. Clearly, there is more to the issue than meets the eye

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In another judgment delivered in Fathima Thasneem (minor) And Other v. The State of Kerala, And Others in 2018 by the very same judge of the Kerala High Court, Justice A Muhamed Mustaque, it was held in the context of a private Christian institution that while hijab was essential to the practice of Islam, a private educational institution too had the fundamental right to manage its affairs in a manner it deemed fit. Therefore, balancing both competing rights, Justice Mustaque held as follows:

“8. In every human relationship, there evolves an interest. In the competing rights, if not resolved through the legislation, it is a matter for judicial adjudication. The Court, therefore, has to balance those rights to uphold the interest of the dominant rather than the subservient interest. The dominant interest represents the larger interest and the subservient interest represents only individual interest. If the dominant interest is not allowed to prevail, subservient interest would march over the dominant interest resulting in chaos. The dominant interest, in this case, is the management of the institution. If the management is not given free hand to administer and manage the institution that would denude their fundamental right…

9. The Apex Court in Asha Renjan and Others v. State of Bihar and Others [(2017) 4 SCC 397] accepted the balance test when competing rights are involved and has taken a view that individual interest must yield to the larger public interest. Thus, conflict to competing rights can be resolved not by negating individual rights but by upholding larger right to remain, to hold such relationship between institution and students.

10. In such view of the matter, I am of the considered view that the petitioners cannot seek imposition of their individual right as against the larger right of the institution. It is for the institution to decide whether the petitioners can be permitted to attend the classes with the headscarf and full sleeve shirt. It is purely within the domain of the institution to decide on the same. The Court cannot even direct the institution to consider such a request. Therefore, the writ petition must fail. Accordingly, the writ petition is dismissed. If the petitioners approach the institution for Transfer Certificate, the school authority shall issue Transfer Certificate without making any remarks. No doubt, if the petitioners are willing to abide by the school dress code, they shall be permitted to continue in the same school.”

In light of the above cases, there appears to be a difference of opinion between a Division Bench of the Bombay High Court (2002) and a single judge of the Kerala High Court (2018) on the essentiality of the hijab in Islam. Notwithstanding my reservations about the very application of the Essential Religious Practices test by Courts, even if the hijab is essential, both the 2002 and 2018 judgments are on the same page on the issue of individual interest yielding to institutional interest, especially when the law vests an institution with the autonomy to prescribe a uniform dress code. In the facts of the Karnataka controversy, Rule 11 of the 1995 Rules categorically bestows upon recognised educational institutions the power to prescribe a uniform dress code, which cannot be diluted to accommodate the interest of any single community or individual.

That apart, what is critical to note is the timing of this controversy and the fact that until December 2021, neither was the hijab worn by Muslim students in these institutions nor was the enforcement of the rule questioned. Clearly, there is more to the issue than meets the eye which is corroborated by the involvement of certain student organisations which seem to have instigated the controversy to claim victimisation of Muslim students. The co-ordinated mobilisation of crowds and opinions both in Bharat and abroad is all too reminiscent of Shaheen Bagh and Singhu border. One hopes that for once the Indian state will grow a spine and send such elements a stern message.

About The Author

J Sai Deepak

J Sai Deepak is a commercial and constitutional litigator who practises as a counsel before the Supreme Court of India, the High Court of Delhi, the NCLAT and the CCI. He is the author of India that is Bharat: Coloniality, Civilisation, Constitution, and India, Bharat and Pakistan: The Constitutional Journey of a Sandwiched Civilisation

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