Divided we stand: the Supreme Court’s judgement in the hijab ban case

Abstract

ABSTRACT In October 2022, a two-judge bench of the Indian Supreme Court delivered a split verdict on constitutional challenges to the “hijab ban” imposed in some educational institutions in the State of Karnataka. This case note identifies gaps in the manner in which three central constitutional claims, namely, religious freedom, privacy and freedom of speech and expression, and discrimination, were engaged with in this case. The note argues that while both judges’ opinions on the inapplicability of the essential religious practices test are questionable, its application does not conclusively determine the constitutionality of the ban. It also argues that the Court should have subjected the hijab ban to a structured proportionality analysis to investigate if the ban violates the rights to privacy, and freedom of speech and expression. Finally, the note argues that claims of indirect discrimination are central to this case and demanded serious engagement by the bench.