This article has been written by Shubhashish Dwivedi (Advocate, High Court of Delhi)
***This article has been selected for LegalOnus Law Journal (LLJ) Volume 1 Issue 9 2025
Abstract
This paper interrogates the constitutional and philosophical tensions underpinning the recent hijab controversy in Indian educational institutions, particularly within the framework of school uniforms, religious freedoms, and institutional autonomy. Drawing on Nassim Nicholas Taleb’s “Minority Rule” theory, the article explores how uncompromising identity assertions by a small group can reshape public institutions, testing the delicate balance between individual rights and collective discipline. The analysis situates the hijab dispute in Karnataka within broader constitutional jurisprudence, tracing landmark decisions to contrast institutional neutrality with evolving notions of personal liberty under Articles 19, 21, and 25 of the Indian Constitution.
By critically examining the judiciary’s attempts to navigate the “essential religious practice” doctrine, secularism, and educational autonomy, the article underscores the pedagogical role of uniformity in nurturing egalitarian learning environments. It argues that while religious expression is constitutionally protected, it must yield—particularly in schools—to the higher goals of inclusivity, discipline, and neutrality. Ultimately, the paper cautions against transforming schools into arenas of identity politics, urging a recalibration of rights and duties in accordance with India’s constitutional ethos of unity in diversity.
Introduction
In his provocative work the Skin in the Game, Nassim Nicholas Taleb puts forward what he calls the “Minority Rule”: that a small, uncompromising, and intolerant group can, over time, reshape society, policy, and institutions—especially when the majority is flexible or indifferent. This is not simply a theory of social stubbornness; it’s a rule of systemic transformation. When overlaid onto the recent hijab controversy in Karnataka’s educational institutions, Taleb’s theory assumes a profound, if unsettling, relevance.
The hijab row is no longer just a question of what a student wears to school; it is a litmus test of the balance between individual liberty and institutional harmony, between cultural expression and educational discipline. In this context, uniforms in schools—originally intended to equalize and unify—are now caught in a crossfire of religious rights, constitutional interpretation, and identity politics.
The Purpose of Uniforms: Equality Through Sameness
The philosophical underpinning of uniforms is simple yet profound: to create an egalitarian space where students are judged by their intellect, creativity, and conduct—not by their family income, caste, religion, or cultural expression. When all students wear the same clothes, the school levels the playing field. Uniforms are not just garments; they are instruments of social equity, discipline, and unity.
Critics argue that such dress codes suppress individuality and cultural identity. But schools are not arenas for political expression or identity assertion. They are sanctuaries of knowledge, where young minds are moulded to become empathetic, rational, and constructive citizens. Arguments for identity assertion inside classrooms fail to acknowledge that children—especially those in early school years—are still developing their cognitive and social understanding. Expecting them to appreciate complex ideas like “unity in diversity” when they are still struggling with basic arithmetic or grammar is neither realistic nor pedagogically sound.
The Legal Position: What the Courts Have Said
India’s constitutional jurisprudence on religious freedom is nuanced and clear: Article 25 guarantees the right to profess and practice religion, but this right is not absolute. It is subject to public order, morality, health, and other fundamental rights. Over the years, the Indian judiciary has developed a doctrinal test to determine the essentiality of a religious practice. Merely being part of a religion does not guarantee constitutional protection unless the practice is essential to that faith.
The Supreme Court of India in Bijoe Emmanuel v. State of Kerala[1], upheld the importance of the freedom of expression and conscience as a core value of the Indian Constitution, and reinforced the principle that individuals have the right to hold and express their beliefs, even if they are in conflict with the majority or the state. It also emphasized the need for tolerance and respect for diversity in a democratic society.
In Nadha Raheem v. C.B.S.E[2], the Single Judge Bench of the Kerala High Court addressed petitions from two female students of the Muslim community who argued that the dress code mandated by the Central Board of Secondary Education (C.B.S.E), which requires wearing half sleeve kurta/salwar, would adversely affect them, as their religious customs require them to wear a headscarf and full sleeve attire. The court noted that the State should not interfere with religious practices that could erase the petitioners’ religious identity. The living environment is shaped by the ideas formed by one’s conscience, subject to the limitations outlined in Article 25(1). The right of women to choose their attire based on religious directives is a fundamental right safeguarded under Article 25(1), particularly when such dress is a vital aspect of their faith. It is important to recognize that in a country with a multitude of religions and customs, it is unreasonable to enforce a specific dress code, under threat of barring a student from taking examinations. Therefore, the Court concluded that no sweeping orders were necessary in response to the petitions, which expressed concern that the petitioners would be prevented from taking the examination due to their adherence to their religious dress customs and beliefs. The High Court instructed the petitioners who wished to wear attire in accordance with their religious customs, despite contradicting the dress code, to report to the Invigilator thirty minutes prior to the examination. Should the Invigilator express any suspicion, the petitioners would also be required to submit to any acceptable method of personal examination as determined by the Invigilator, conducted solely by an authorized individual of the same gender.
In Amnah Bint Basheer v. CBSE[3], the Kerala High Court acknowledged that wearing the hijab is a religious obligation in Islam. However, it refrained from granting an unconditional right to wear it during examinations, seeking to balance this with the regulations set forth by the CBSE.
In contrast, in the case of Fathima Thasneem v. State of Kerala[4], the same court emphasized the importance of a school’s institutional autonomy over the religious expression of the petitioners. The court articulated that the rights of an individual cannot supersede the rights of an institution to uphold discipline, decorum, and uniformity.
These rulings indicate a significant trend: Indian courts are increasingly acknowledging the necessity of balancing religious rights with the operational integrity of secular institutions. This is not about restricting religious freedom but rather about constraining its expression in specific contexts where other societal interests—such as education and discipline—must take precedence.
Rights vs. Duties: The Indian Constitutional Ethos
The Western liberal tradition, especially that of the United States, emphasizes individual rights in an almost absolutist manner. However, the Indian Constitution strikes a careful balance between rights and duties. The Preamble itself speaks of fraternity, unity, and integrity of the nation—values that often require individuals to subordinate personal preferences for the greater good.
Freedom of religion, like all fundamental rights in India, is qualified. The hijab controversy thus cannot be adjudicated solely on the metric of individual liberty. Public education is a state interest. It must prioritize discipline, inclusion, and neutrality. No fundamental right is an unqualified license to disrupt public order or institutional harmony.
Hijab, Identity Politics, and the Domino Effect
To frame the Karnataka hijab controversy purely as a battle for religious freedom is to ignore the broader political context. The initial protests were localized and sporadic, but they soon snowballed into a statewide issue—thanks in part to student and political organizations with communal leanings. The Campus Front of India (CFI), with ties to the now-banned Popular Front of India (PFI), played a pivotal role in orchestrating coordinated protests.
Predictably, identity begets counter-identity. In reaction to hijabs, some Hindu students started wearing saffron scarves. Soon, what was once a policy issue regarding uniforms turned into a cultural standoff. The slippery slope was no longer theoretical—it was real and palpable.
Should we now allow blue scarves representing Ambedkarite ideology, Christian crosses, tilaks, turbans, or Jain white robes into the school dress code in the name of diversity? If yes, we risk turning our educational institutions into arenas of identity display and contestation—undermining their core purpose.
The Supreme Court of India in Mohammed Zubair Corporal No.781467-G vs Union Of India & Ors.[5] determined that the constitutional framework acknowledges the necessity of balancing individual religious rights with the discipline and security needs of the armed forces. The Parliament possesses the power to limit and appropriately amend specific fundamental rights of armed personnel to guarantee the effective operation and discipline within the Force, while upholding its uniformity without any differentiation based on caste, creed, religion, or sex.
Schools Are Not Political Battlegrounds
To teach and to learn are among the most sacred social acts in a democracy. The right to education became a fundamental right in the Indian Constitution in 2002 and Article 21A which provides that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine. The right to education to include the right to the provision of a safe environment in schools.
In Avinash Mehrotra v. Union of India & Others[6] he Court ruled that individuals possess a fundamental right to receive education without the fear of security and safety. This right to education includes the provision of safe schools as stipulated in Articles 21 and 21A of the Constitution. It is the responsibility of the State to ensure that children do not face any harm while exercising their fundamental right to education in all educational institutions, including private schools. However, schoolchildren are still in the process of developing their understanding of society, self, and others. Imposing identity markers—whether they are religious, cultural, or political—during this formative period poses a risk of indoctrination and division. Although students are entitled to education under Article 21, this does not necessitate the wearing of identifiers of their faith as part of the uniform in a secular institution. School uniforms were never intended to erase identity; rather, they were designed to postpone the expression of identity until a more mature age, when such expressions can be better contextualized and critically assessed. Therefore, the purpose of uniforms is to promote a sense of ‘equality’ among students, instilling a sense of unity, reducing individual differences, allowing a focus on learning without the distraction of social status, enhancing discipline, minimizing conflicts within the school, fostering school spirit, creating a sense of belonging, pride, and loyalty towards the school, alleviating economic burdens on parents, ensuring equality within the educational institution, catering to the needs of a diverse community, and promoting a positive sense of communal identity without contributing to disparities in wealth and style. In conclusion, schools should not serve as arenas for religious or political expression. There exists an appropriate time and place for such expressions—colleges and universities, with their older and more mature student bodies, are better suited to engage in discussions regarding diversity, rights, and cultural plurality.
The Argument for Institutional Autonomy
The Supreme Court has often upheld the rights of institutions to regulate their internal affairs. In T.M.A. Pai Foundation v. State of Karnataka (2002)[7], the court held that educational institutions have a right to administer themselves. This autonomy is not unchecked, but it includes decisions on dress code, discipline, and academic environment.
In The Commissioner Hindu Religious Endowment Madras v. Shri Laxmindar Tirtha Swamiyar of Shirur Mutt [Shirur Mutt Case][8], the apex court ruled that religious organizations possess the authority to govern their own affairs independently, provided they refrain from actions that violate public order, morality, or health. The court elucidated the extent of religious denominations concerning religious freedom (Article 25) and their entitlements to manage property and practice their beliefs, as well as the rights of religious denominations (Article 26) and the taxation of religious institutions. This case established a significant precedent for safeguarding religious freedoms and property rights within India.
In Asha Ranjan v. State of Bihar[9], the Supreme Court determined that individual rights may, at times, need to be subordinated to broader public interests. This reasoning should also extend to school dress codes. The integrity and unity of an institution should not be compromised for the sake of religious expression—particularly when such expression is neither prohibited nor discriminated against beyond the school premises.
As Justice Hemant Gupta in Aishat Shifa v State of Karnataka[10] observed that, “Secularism is applicable to all citizens, therefore, permitting one religious community to wear their religious symbols would be antithesis to secularism. The right to education under Article 21 continues to be available but it is the choice of the student to avail such right or not. The student is not expected to put a condition, that unless she is permitted to come to a secular school wearing a headscarf, she would not attend the school. The decision is of the student and not of school when the student opts not to adhere to the uniform rules.”[11] If the students of one faith insist on a particular dress, there is no stopping for the others to carry their faiths and beliefs to the schools which would not be conducive for the atmosphere of educational institutions.
Conversely, the perspectives expressed by Justice Sudhanshu Dhulia in this case warrant thorough and serious consideration concerning the implications of Articles 19(1)(a), 21, and 25(1) of the Constitution of India. He argues that the prohibition on wearing the hijab constitutes an affront to their dignity and a violation of their fundamental rights within a secular institution. According to the constitutional framework, the decision to wear a hijab should fundamentally be a matter of personal choice, regardless of whether it is deemed an essential religious practice; it remains a question of conscience, belief, and self-expression.
Therefore, the court appropriately chose not to resolve the issue solely through the perspective of essential religious practice, acknowledging that such a criterion is relevant only when state intervention in religious customs is challenged. Rather, the matter was grounded in the wider constitutional assurances of personal liberty, the freedom of expression as outlined in Article 19(1)(a), and the right to privacy. Since the act of wearing a hijab does not disturb public order or violate moral or health standards, imposing limitations on its use within educational settings would represent an unjustified encroachment on individual rights. Consequently, the ruling achieves a balance between institutional neutrality and fundamental freedoms, thereby reinforcing the constitutional principles of inclusivity and equality.
Conclusion: Preserving the Idea of India
The hijab controversy is not a trivial matter about a piece of cloth. It underscores the delicate interplay between religious freedom, constitutional rights, and state regulation in a secular democracy. The ruling affirms that in a pluralistic society, the state must uphold secularism without suppressing personal expressions of faith, ensuring that students are not unjustly barred from education based on attire. The issue is more complex; it is about competing visions of India. One vision prioritizes individual assertion and identity politics—even at the cost of collective harmony and institutional discipline. The other vision respects diversity but believes that unity must come first, especially in formative spaces like schools.
It is time to stop valorising obstinacy in the name of principle. When the most unreasonable begin to dictate the terms of public discourse, as Taleb warned, the result is not freedom but fracture. India’s constitutional ethos does not promise absolute freedoms; it guarantees freedoms with responsibility, liberty with limitations, and diversity with discipline.
Let the schools teach this lesson first—not through textbooks, but through the lived experience of every child wearing the same uniform and sitting side-by-side, not as Hindus or Muslims, not as rich or poor, but simply as students of India.
[1] (1986) 3 SCC 615
[2] 2015 SCC OnLine Ker 21660
[3] 2016 SCC OnLine Ker 41106.
Supreme Court Ruling on Dress Code for Teachers: Avinash Mehrotra v. Union of India, (2004) SCC OnLine SC 460.
[4] 2018 SCC OnLine Ker 5260
[5] 2016 SCC OnLine SC 1472
[6] Writ Petition (Civil) No.483 of 2004, (2009) 6 SCC 398
[7] (2002) 8 SCC 481
[8] 1954 AIR 282, 1954 SCR 1005
[9] (2017) 4 SCC 397
[10] AIR 2022 SC 842
[11] https://www.scconline.com/blog/post/2022/10/13/hijab-ban-supreme-court-gives-split-verdict-justice-hemant-gupta-upholds-ban-justice-sudhanshu-dhulia-bats-for-girl-child-right-to-education-legal-research-updates-news/