The Hijab Ban Verdict: A Case Note on Aishat Shifat v. The State of Karnataka

Should judges engage in theological deliberations? This question has often been asked in the context of religious claims before the courts in India. Following the hijab ban by the Karnataka government, the subsequent decision of the Karnataka High Court (khc) upholding it, and a split verdict by the Supreme Court of India (sci), the question is doing the rounds once again. The present article attempts to critically analyze the decisions of the khc and the sci on the hijab controversy. The analysis draws on the claim of Justice Dhulia that the courts are not the proper forum to engage in theological deliberations, and judicial interference is warranted only when the limits set by the Constitution are violated. In alignment with the claims of Justice Dhulia, the present article argues that in matters concerning government interference in religious practices, the focus of the reviewing court should be more on the legitimacy of the restriction rather than the religious validity of the practice. The author agrees with Justice Dhulia that in matters concerning the right to religion, proportionality is objectively the better standard of judicial review, as it dissuades the court from inquiring into the religious and cultural practices of the parties.