The hijab ban, which has now been upheld by a constitutional court in India, has stirred considerable controversy and has given rise to a number of articles and expert commentary on constitutional freedom, religious liberty, the word ‘secular’ in the Constitution of India, and a lot else.

The judgment given by a bench led by Chief Justice Ritu Raj Awasthi, of the Karnataka High Court, has been assailed for having disregarded constitutional principles and being dismissive of diversity, which is the hallmark of India. The Constitution being the 'holy grail' of the Indian legal system, is being given the attention it deserves, because this judgment in the author’s respectful view, as also in many others; is an affront to that document, but another aspect deserves attention, which maybe is not being discussed as much.
 
The difference between legislative and executive power is well established. This current controversy pertains to the latter. The rule-making power of the government. Such power flows from enabling legislation, and it can be challenged if it is violative of the parent act, the Constitution, or against public policy. The Government Order (GO) which led to this case before the Karnataka High Court was issued, drawing from the power to make rules within the Karnataka Education Act, 1983 (“the Act”). The relevant portion, taken from the judgment itself is-
“ the students should compulsorily adhere to the dress code/uniform as follows:
a. in government schools, as prescribed by the government;
b. in private schools, as prescribed by the school management;
c. in Pre-University colleges that come within the jurisdiction of the Department of the Pre-University Education, as prescribed by the College Development Committee or College Supervision Committee; and
d. wherever no dress code is prescribed, such attire that would accord with ‘equality & integrity’ and would not disrupt the ‘public order’.”

The GO was passed under section 133 of the Act read with sections 7(2) & (5). The provision empowers the government to issue, subject to other provisions of the Act, directions which it deems necessary to carry out purposes of the Act and to give effect to any of the provisions under the Act. The High Court while upholding validity of the GO vis-a-vis the Act observed that power to prescribe a uniform is within the scheme of the Karnataka Education Act, 1983 and the Rules made under it and the GO gives effect to the object and purposes of the Act.

It is a well understood and realised principle of law that provisions of law have to be read as whole, and not in isolation. The question as to whether the government order qualifies such a need is to be seen, although the state specifically avers so. However, in the interest of independent inquiry and given the high stakes involved, it is important to analyse the objects and reasons clause of the Act.

“It is considered necessary to provide for the planned development of educational institutions, inculcation of healthy educational practice, maintenance and improvement in the standards of education and better organisation discipline and control over educational institutions in the State with a view to fostering the harmonious development of the mental and physical faculties of students and cultivating a scientific and secular outlook through education.”

Although the Court notes the primary feature of the objects and reasons clause as being “fostering the harmonious development of the mental and physical faculties of students and cultivating a scientific and secular outlook through education”, it offers near to no reasoning as to why the Petitioners' purported claim of uniforms contravening the provisions and spirit of the Act and the Constitution are unfounded.
 
The secular underpinning of this Act reflects not only in the objects and reasons clause but is also interspersed throughout the provisions. Section 39 which deals with the withdrawal of recognition of any private educational institution categorically states in sub-clause (c) of clause (1) that if any institution encourages propaganda or practices wounding of religious feelings or beliefs of a class of citizens, the same shall be withdrawn.  Section 53 which deals power of the State Government to withhold, reduce or withdraw grant, states in clause (2), sub-clause(ii) that if an institution denies admission to a citizen on grounds only of religion, race, etc. or that in sub-clause (iv) it engages in any act, directly or indirectly, similar to that mentioned in section 39(1)(c), the funding granted by the State may be dealt with in any manner prescribed herein. Therefore, to suggest that the rule made under section 133 is in consonance with the spirit of the Act, can be credibly questioned as, to those women who wear the hijab, being proscribed from wearing it, will hurt religious feelings and injure religious beliefs.  

The word ‘secular’ connotes two understandings: one, which can be termed as the France understanding and the other, for our purposes the Indian understanding. The banning of religious wear in France had a few years ago outraged the international community for supporting a skewed understanding of secularism, which is devoid of religious plurality and enforces an unnatural uniformity. The Indian understanding is by culture and by logic - converse. The approach adopted by the High Court unfortunately is of the former, the application of which, in India will lead to a multitude of problems. 

The Court states that the object of uniformity within the school system is the emancipation of women. To this end, the Court cites a paper written by Sara Slininger that suggests the history of the hijab is a complex one, involving an aspect of societal compulsion and class division. However, the research relied upon by the petitioners, which was unceremoniously sidelined as being unauthentic and without proper credentials of the researchers, showed that head coverings are commonplace for most Hindu, Muslim and Sikh women outside their homes. The statistics mentioned did in fact deserve detailed discussion and application of judicial mind, which the Court skirted from on the spurious basis of questioning the credibility of the Pew Research Centre.  

The unnatural uniformity that this 'secular' order seeks to enforce will become a lightning rod for a number of socio-political issues with far-reaching consequences that may not be clearly visible at this point in time. The student will, by virtue of this order, be forced to live in dual realities - one, where everybody is supposedly the same, and the other, where they are starkly different. In this case, education, instead of fostering harmonious development as enshrined in the Act with the institution reflecting the diversity in society will push duality of identity giving rise to a disconnect between the society and the schools, forming watertight compartments, acting adversely to one another, instead of in cohesion. 

In the reality contemplated by the Court, where everybody is uniform and identical, the object of the Act to achieve "harmonious development" becomes illusory.

(Harshdeep Singh Bedi is an Associate at S&R Associates, New Delhi. Views are personal. He can be reached at bediharshdeepsingh08@gmail.com.)