Zoya Hassan, Jindal Global Law School
Sai Leshanth Pulikesi, Jindal Global Law School
ABSTRACT
The ban on the hijab in educational institutions in Karnataka violates Article 14 and Article 25. The concept of substantial equality and indirect discrimination has been a focal point in judicial debates and judgements. Although the ban was for all religious attire and seemed neutral, in applying the test of indirect discrimination, we find that the effect of this ban fell disproportionately on Muslim female students. Instead of accommodating them by prescribing a uniform colour of hijab, the absolute ban led to the educational deprivation of these students, who are already historically disadvantaged in terms of access to education. Moreover, the ban instilled fear and feeling of ostracization. India has consistently reaffirmed its diligence and dedication to pluralism and tolerance. In consonance, the hijab must be respected and accommodated, as many Muslim women consider it a part of their religious beliefs. This paper does scrutinise the application of the ERP test, in rejecting the theological approach of the Court in deciding whether a belief is ‘fundamental’, amidst a diverse and varied population with differing beliefs. Thus, the ban must be declared unconstitutional, being ultra vires Article 14 and 25.
Keywords: Hijab; Constitution; Equality; Religion
