High Court ruling upholding the restriction on wearing Hijab in classrooms, is a violation of the Right To Education

16 March 2022

We read with anguish and dismay, the Karnataka High Court’s March 15th ruling on the Hijab, which upholds the active prevention of students wearing the Hijab, from attending classes and examinations in educational institutions where uniforms are prescribed. The court argues that the Indian constitution grants freedom to practice one’s chosen religion to all citizens, but with “reasonable restrictions”. We wonder in what way can these restrictions be considered “reasonable” if they deny education to girls and women from a minority community, which has historically lagged behind in accessing education?

While arguments about how the High Court order violates the fundamental rights of these women, including those of freedom (Article 19, 21, 25 from our constitution) and equality (Article 14) have been made; in this statement we would like to specifically highlight the violation of their right to education (RTE).

  1. Article 21, dealing with the right to life and liberty has been declared by the Supreme Court of India as ‘the heart of fundamental rights’. The 86th constitutional amendment inserted article 21A, which introduced the right of children to a free and compulsory elementary education. The right to education (RTE) thus has been appropriately seen an extension of the right to life and liberty.
  2. The Right of Children to Free and Compulsory Education Act, 2009 (RTE), enacted to implement this fundamental right, covers children between the ages of six and fourteen. The National Education Policy 2020, adopted by the Union Cabinet, has recommended that the state’s responsibility be extended to freely and compulsorily educate all children between the ages of three and eighteen. Hence, the hijab ban is a violation of this right, in spirit, for those in secondary schools, and in letter and spirit, for girls in elementary schools . Every child has a fundamental right to attend school/college and denying a child education, for any reason, is a violation of the RTE. It is the responsibility of the government to protect this right, and the responsibility of the Constitutional Courts, to punish any violation. It is imperative that these institutions fulfil their constitutional responsibilities towards children.
  3. The RTE requires that the School Management Committee (SMC) be given the authority and responsibility to be the agency for school development. However, SMCs or college development committees (CDC) cannot be allowed to impose restrictions which violate fundamental rights of students or teachers, or specifically discriminate against members of a community. When many government educational institutions have overt displays of Hindu religious symbols and prayers, selectively banning the dress/clothing of one community, and enforcing a homogeneous, majoritarian culture is bigotry. By wearing a Hijab over their uniform, Muslim women are adhering to the dress code as much as those who wear turbans, bindis/kumkum/tilak and bangles along with the uniform.
  4. The High Court order has argued that ‘uniformity’ is required in institutions to preserve the learning environment. As emphasized in the Aims of Education position paper of the National Curriculum Framework 2005, diversity and exposure to cultures other than our own is essential for broadening our student’s thinking, for developing respect for others, and for building a harmonious society. This means school must provide young people a nurturing environment, for them to experience and value tolerance, empathy, care, and compassion. Individuals, specially our youth, must be encouraged to express themselves in a variety of ways, including through their dress and clothing. Such exposure permits learning about and learning from the ‘other’, and can be developed into respect for one another. Calling out students, punishing, and humiliating them will cause trauma and long term damage. It will tell them that power can be used to impose injustice, and that compassion is weak and unnecessary.
  5. Today, education needs to help us move away from herd mentality and mob brutality. It needs to help make room for creativity, collaboration, and expression. Dissent is essential to democracy. Cruelties invariably arise from a system of obedience and regimentation, harming both individual development and social justice. Schools/colleges must support young women to make their own decisions regarding their dress and clothing. Paternalism is harmful and violative of fundamental rights of women.
  6. This violation of the children’s Right to Education, distressing by itself, comes just after schools and colleges have re-opened, after nearly 2 years of closure due to the pandemic. The loss to students due to school closure is an Education Emergency, unprecedented in the history of independent India. Malnutrition, child labour, early marriages, and domestic violence have increased sharply. Most children have suffered learning and socio-emotional deprivation. When the educational status of students is already under severe harm, aggravating this, by raising issues that prevent their attending school/college, is simply unacceptable.
  7. We strongly urge the Government of Karnataka to:
    1. Remove restrictions on clothing and dressing, which are the personal choices of students and ensure that school and college management committees cannot impose unreasonable restrictions on students
    2. Encourage students to attend schools and colleges – the education emergency is going to cause a huge dropout of students, increase early girl marriages and child labour; this needs a people’s movement to reverse
    3. Focus energies on addressing the Education Emergency

Download the statement here in English, Kannada

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