India is a constitutional democracy that is based on pluralism, secularism and equality before the law. It guarantees freedom of conscience; the right to profess, practise and propagate religion, and it sets up a common legal and political structure for over a billion and a half citizens. However, in the case of the religious duties of the Muslim minority, the intersection of religious rights, constitutional rights, and state laws and institutional rules has become a battleground.
It isn’t just an issue of the hijab. It is a much larger question: how a religious minority can balance what it sees as its Islamic duties with the laws of a secular state and its institutions. The question is more challenging if Muslims believe that a state policy or institutional rule is forcing them to compromise a practice that they consider to be of religious importance.
This tension has come back to the fore with the recent order of the Allahabad High Court. In Sukaina Rizvi v. State of Uttar Pradesh & Others, a Division Bench refused to grant a Muslim student’s prayer to wear a headscarf with her prescribed school uniform. The court concluded that the petitioner failed to prove that wearing a headscarf in the classroom was a religious necessity and affirmed the power of the school to impose a dress code.
The judgment applies only to the facts of this case, but it has a much wider reach. It brings into question matters of religious autonomy, minority rights, and institutional authority, and the role of the court in defining an essential religious practice.
But more importantly, it shows a phenomenon that can be expressed as one Constitution, multiple realities: India has a single constitution, but the reality of religious freedom may differ based on judicial interpretation, state policy, and institutional regulations.
Who is Sukaina Rizvi?
Sukaina Rizvi, a minor student at Tagore Public School in Prayagraj (formerly and colloquially known as Allahabad), approached the court through her mother after the school allegedly refused to admit her to Class XI because she wished to continue wearing a headscarf along with the prescribed school uniform.
She argued that she had studied at the same school from Class VI to Class X while wearing the headscarf, and that the school had never objected to it previously. She submitted her school ID cards and group photographs from Classes VIII, IX and X as evidence showing her wearing the headscarf with the prescribed uniform.
She is therefore seeking a court order (mandamus) directing the school to allow her to wear a headscarf in addition to the school uniform and to admit her to Class XI.
Muslims in India: Between Religious Obligations and Constitutional Citizenship
Muslims in India have a unique position according to the Constitution because they are citizens of the country and have to abide by Indian law, but also, they are guided by Islamic principles when it comes to their family life, clothing, food, and personal conduct.
The Constitution of India, including Article 25, guarantees the freedom of religion with some limitations such as public order, morality, health, and other constitutional provisions. The problem is when religious practices clash with institutional rules, such as school and university uniforms.
The question is, then, whether Muslims should be exempted from the law, and the answer is that they should not be! The core issue is whether it is possible to have general rules that allow for legitimate religious differences without undue burden or requiring minorities to decide between equal citizenship and their religion.
The Hijab: From Religious Practice to Constitutional Dispute
One of the most apparent forms of the tension between religious freedom and institutional regulation is the hijab. It is a sign of modesty, faith, dignity, identity, and choice for many Muslim women. However, in recent years, Indian courts have been called upon to decide if the hijab is an “essential religious practice” that is protected by Article 25.
This approach is regarded as problematic, as it imposes restrictions on the ability of courts to assess the religious significance of practices considering constitutional rights.
The issue came to the forefront in Karnataka. Therefore, in 2022, the Karnataka High Court decided that hijab is not a religious necessity that could be protected under Article 25, and therefore, restrictions on wearing hijab in educational institutions were upheld. In October 2022, the case was taken up by the Supreme Court, which issued a split verdict, with Justices Hemant Gupta and Sudhanshu Dhulia. Justice Gupta held that such restrictions have been upheld, and Justice Dhulia emphasized the rights and interests of education of the affected students.
The Supreme Court did not reach a consensus verdict, and this question of constitutionality never came up for the decision and thus was important for the subsequent Allahabad High Court verdict.
The Allahabad High Court Decision
A girl student, Sukaina Rizvi from Tagore Public School, Prayagraj, filed a writ petition in the Allahabad High Court asking to have the right to wear a headscarf with the uniform. She had worn it without any objections by her during her early years at the same institution, but she had encountered problems while applying for admission to Class-XI admission, she said. Lastly, the Court denied her petition.
Notably, the judgment did not ban the hijab for Muslims in India. It rather spoke of the petitioner’s religious practice and the policy of uniforms in schools. The Court observed that the educational institution has a considerable right to have a uniform policy; this is legitimate, non-discriminatory, and focuses on discipline and institutional identity. The Court pointed out that the petitioner was already permitted to wear the headscarf, but not at all times.
The Court also considered the religious element of the claim. The petitioner was unable to provide sufficient religious or legal material to demonstrate that wearing a headscarf in the classroom was an essential religious practice and that the petitioner’s not wearing a headscarf in the classroom would have a fundamental impact on her religious beliefs. The Court, in reaching this conclusion, cited past judicial reasoning, including the Karnataka High Court’s reasoning, which it found persuasive, due to the lack of a clear Supreme Court majority decision after the split verdict in 2022.
So, the primary concern of the Court was to deal with a problem of institutional discipline, uniformity, and the power of educational institutions over the dress of pupils, and not discrimination against Muslims as a community. This is important to consider when making judgments and their implications.
However, this is more of a fundamental question of the Constitution. The school’s position is only legitimate for the purpose of promoting a unity of school identity because it would make it harder to implement a consistent policy and risk losing some of the meaning.
In the interim, however, the reasons for the provision of reasonable accommodation for religious belief cannot be overlooked. If the right to wear accommodation conflicts with the discipline or the mission of the school or is contrary to the nature of the uniform, it is justifiable to ask whether the rights of the minority student should be put aside for the rights of the other students. However, the institution cannot simply say: “We have a uniform policy, therefore Article 25 does not apply.”
The issue of hijab is not limited to clothing. It makes one wonder, however, about the scope of institutional independence, the range of religious freedom, equality under the law, and the responsibilities of a pluralistic constitutional democracy when it considers the issue of balancing institutional norms with a legitimate religious difference.
Actual Reasoning of the Allahabad Court
- Where a school has a uniform and non-discriminatory school uniform policy, which is also found to be in good faith, it is within the school’s administrative sphere, and courts are reluctant to make their own school uniform judgment.
- The fact that the headscarf was tolerated in the previous classes does not create an estoppel or vested right upon the school to continue to permit it indefinitely. Schools may change the rules about the wearing of the headscarf at any time.
- That the petitioner failed to produce or plead any material, such as religious text, theological explanation, etc., to prove that wearing a headscarf is an “essential religious practice” of Islam is not enough to invoke Article 25.
- The wearing of hijab/headscarf is not a requirement of the Islamic religion, which, if denied, would make the person a non-Muslim (as per Resham); rather, it is a matter of choice as per the conviction of the wearer.
- Photographs demonstrated that other Muslim girl students at the same school were also wearing the uniform without wearing the headscarf, suggesting there was no religious compulsion in this community.
- The school, like most private institutions, serves a public function (education) and is subject to writ jurisdiction; therefore, the Court will not set aside a non-discriminatory and neutral school uniform policy without establishing a prima facie case of a fundamental rights violation.
Some Famous Judicial Precedents related to Hijab and Dress codes in India.
- Pradeep Kumar Srivastava v. MHRD, Allahabad High Court 2014
The case is a reminder that, in general, the court should not intrude upon the administration of educational institutions and on their dress code. However, if a school has a dress code for a legitimate school purpose (discipline, uniformity, etc.) and the dress code is not applied in a discriminatory way, then the school has a legitimate interest that may not be subject to judicial review unless the school is found to violate existing law or the Constitution.
- Fathima Thasneem v. State of Kerala, 2018, was filed before the Kerala High Court.
The Kerala High Court ruled that the prerogative of the educational institution to run its business can override the choice of a particular student on his/her dress. The Court discussed the exercise of competing interests and gave special consideration to the balance of institutional autonomy and the power of the institution to make reasonable rules for students; in striking a balance, it noted that individual religious or personal preferences are not automatically incompatible with institutional rules.
- Fathema Hussain Sayed v. Bharat Education Society-Bombay High Court, 2002
The Bombay High Court said that it had raised issues regarding whether wearing a headscarf is a religious obligation or if a ban on wearing a headscarf is an infringement of Article 25, which is in the name of religious freedom. The Court has considered the religious books used by the petitioner, in which the relevant Quranic verses are displayed, and observed that it is not conducted in a manner that makes the dress provision in the institution invalid.
- Resham v. State of Karnataka-High Court of Karnataka, 2022
In this landmark case relating to the wearing of hijab, the Karnataka High Court (Full Bench) ruled in a precedent-setting manner that wearing hijab was not a religious obligation of Islam as enshrined in Article 25. It maintained the uniform requirements and refused to accept the claims of Article 14, Article 15, Article 19, Article 21 and Article 25 relating to reasonable accommodation for the hijab in uniform policies of institutions.
- Supreme Court, Aishat Shifa v. State of Karnataka, 2022
The Karnataka High Court gave a split decision, with Justice Sudhanshu Dhulia upholding the appeals on an alternative ground that the state ought to honor the parents’ will and choice on education, while Justice Hemant Gupta quashed the appeals on the ground that the state’s duty is to provide equal and universal access to education. The question about the constitutionality of Hijab was submitted to a larger bench, and so the Supreme Court did not establish any permanent benchmark for the question of the constitutionality of Hijab.
- Zainab Abdul Qayyum Choudhary v. Chembur Trombay Education Society, 2024 Bombay High Court.
In the facts and circumstances before it, the Bombay High Court held that in the said context it would be within the power of an educational institution to impose a dress code as prescribed. The Supreme Court also entered the fray and issued an interim order until the matter is finally decided. In general, an interim order without reasons is not ‘final law’ and should not be viewed as a ruling by the Supreme Court on the broader constitutional question of the hijab and institutional bans on dress codes.
Religious Biasedness in Indian Courts
Indian courts have been criticized as having been inconsistent in their stance on religious freedom. Sometimes courts have upheld religious conscience; sometimes petitions have been thrown out because there wasn’t enough evidence that the practice is religiously essential. This leaves the question of equal application of constitutional principles to all religious communities.
One such case is that of the Supreme Court in Bijoe Emmanuel & Others v. State of Kerala in 1988, where three children of the Jehovah’s Witnesses community refused to sing the National Anthem on religious grounds. Later, the school administration expelled them for disrespecting the national anthem. The Supreme Court held that their fundamental rights under Article 19(1)(a) and Article 25(1) had been violated when they were expelled.
The big question in the case is whether Muslim women and girls who want to wear the hijab should not be given just as much serious and impartial consideration as Bijoe Emmanuel. The problem is, in any case, that the right to freedom of religion and conscience is not applied uniformly, irrespective of religious belief in India.
One State, Multiple Constitutional Realities
There are no multiple laws in India for different religious communities. The Constitution continues to be the top law, and the judgment of the Allahabad High Court on the hijab cannot be termed as anti-Muslim law.
But not all experiences are the same under equal constitutional rights. The same ideas can have different meanings in various institutions, states, and courts. Depending on the Institutions’ policies and judicial interpretation, one institution may allow a Muslim student to wear hijab, and another may not.
This can be called “constitutional geography,” where the formal right is the same, but its actual protection changes based on location, institution, applicable rules and regulations, and jurisprudential interpretation.
This is especially important for Muslims as they may have a specific dress, worship, diet, and family life that become an integral part of their religious identity and conscience. The constitutional question is not merely one of establishing neutrality on the formal level but also of whether a rule places an undue burden on a religious minority.
Religious freedom is guaranteed in Article 25, which is limited by the Constitution. Restrictions should therefore seek legitimate aims and be judged based on necessity, proportionality, consistency, and non-discrimination.
The discussion must not be seen as “Islam vs. the Constitution. It is the question of how constitutional governance can ensure institutional neutrality in guaranteeing the freedom of religion, the rights of minorities, and equal access to public institutions and education that is more important.
Bhartiya Janta Party’s (BJP) Ideological Politics and the Minority Question
The controversy surrounding the hijab is not an isolated issue, but rather is embedded in the wider political landscape of India. Some have criticized these developments as part of a Hindu nationalist ideology that prioritizes a sense of Hindu culture and Hindu nationalism above all else, namely the equal treatment of Muslims and other religious minorities.
In this sense, policies which are being articulated as policies of uniformity or institutional discipline can hurt Muslim students in the form of limiting religious expression, like the hijab. It is not always the case that every policy which is framed by the BJP is targeted against Muslims, but it is also a concern that in a majoritarian political atmosphere, seemingly neutral policies could be formulated and implemented in a way that might hinder the minorities from enjoying their constitutionally guaranteed rights equally.
This is evident from the Karnataka hijab controversy. In its split verdict, Justice Hemant Gupta upheld the restrictions, whereas Justice Sudhanshu Dhulia gave more weight to education and the individual rights of the Muslim girls and refused to base its decision solely on the essential religious belief of the hijab.
This is an important constitutional distinction. The first focuses on the power of an institution to impose shared rules; the second on the impact of those rules on people, with special attention to the impact on religious minorities.
Restriction on religious expression should not be given automatic justification by institutional autonomy in a pluralist democracy. The state should ask itself about the need for restriction; its proportionality; and reasonable accommodation, particularly in the field of education and public participation.
The apprehensions about BJP politics, therefore, must be evaluated based on specific policies, laws, institutional decisions, and their impact on minorities, but not on general terms that all BJP policies are anti-Muslim. An attack on majoritarian tendencies and majoritarianism does not equate to the desire to wipe out Muslim identity.
Beyond Hijab: Muslim Identity and Citizenship
The hijab debate is part of a larger issue about Muslim identity in India, covering matters of personal law, religious places, food habits, representation, citizenship, and religious expression.
A Muslim citizen is not less Indian for wearing a hijab. Meanwhile, institutions can also have broadly applicable rules. The challenge to the constitution is to do so without compelling minorities to act either as a religious group or as an equal member of public society. The considerations are: is there a need for the restriction, is it proportionate, is it not discriminatory, does it consider reasonable accommodation, and does it relate to a legitimate institutional purpose?
Conclusion
Judicial precedents and the Allahabad HC’s judgment reveal that the hijab controversy in India is related to the issue of institutional autonomy, religious freedom, equality, and minority rights. In the past, Indian courts have upheld the right of educational institutions to draw up dress codes in good faith for admissible reasons like discipline and uniformity.
In the meantime, the Supreme Court’s decision in the Karnataka hijab case shows that the fine line between institutional rules and the freedom of religion of individuals is not yet settled.
It is important to note, then, that the Allahabad judgment is not a pronouncement on school dress code per se, but a judgment on a specific dress code controversy at a particular school. However, it poses a larger issue of the formal neutrality of rules and religious minorities in practice. Article 25 does not mean freedom of religion, but conditions on the Right to Religion must be necessary, proportionate and non-discriminatory.
The issue isn’t ‘Islam vs. the Constitution’, but rather ‘are Muslims to be excused from the application of generally applicable laws? The simpler question is whether minoritized groups can live with the basic rules of society without being subjected to undue restrictions. It does not mean that in a pluralistic democracy there must be uniform identity for the Constitution’s equality to come into being. The constant problem for India is to maintain institutional neutrality, institutional discipline, and equal dignity, equal citizenship, and meaningful protection of legitimate religious expression.
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