With SC split verdict, the issue remains unresolved
The Supreme Court of India on October 13 gave a split verdict on Hijab, which was banned in Karnataka pre-university colleges by a Government Order (GO). The question was simple: “Is there any justification to stop a girl student at the gates of educational institutions if she has covered her head with a piece of cloth?” But it was stretched at length in the courts. A Judge of the Supreme Court bench dismissed 16 petitions challenging the ban and upheld the state-ordered ban, while another Judge allowed the petitions and dismissed the ban.
The controversy started from the small town of Kundapura, District Udupi in Karnataka. Two students of second-year Aishat Shifa and Tehrina Begum were stopped at the gate of the local Government Pre-University College on 3 February 2022 and asked to remove their headscarves to enter the premises. Both the girls have been wearing hijab, even inside their classrooms, ever since they joined the college, more than a year back. They say they had never faced any objection from anyone. There was never an issue.
The next day (February 4), both made a representation before Deputy Commissioner Udupi, praying that direction be issued to the college to let them enter the college and complete their studies. DC did not issue any direction. Instead, the next day (February 5) the Government came up with an Order. This G.O. refers to the Karnataka Education Act, 1983, and cites three Judgments of High Courts to conclude that prohibiting hijab does not amount to violation of Article 25 of the Constitution (freedom of conscience and the right freely to profess, practise, and propagate religion).
The G.O. mandates that the Government schools must have a uniform for all students and the colleges which come under the jurisdiction of the Pre-University Education Department, and the uniform which is prescribed by the College Development Committees (in Government colleges) and the Board of Management (in private schools), should be worn. There was, however, a caveat, which said that in the event the Board of Management did not mandate any uniform then students should wear clothes that are “in the interest of unity, equality and public order.”
The sequence of the events and their speed indicate that the whole action was pre-planned. Certainly, it was also politically motivated. During the same period reports of saffron scarf-clad elements creating mayhem at colleges had also come. The G.O. of the BJP Government would have pleased totally unconcerned anti-Muslim elements on the eve of assembly elections in several states, including UP and helped polarisation of votes.
The girl students then approached the High Court which allowed the ban. The matter was then referred to SC by 16 litigants separately. It was heard for several days by a two-judge bench comprising Justice Hemant Gupta and Justice Sudhanshu Dhulia.
On October 13, a split verdict was announced. Justice Gupta upheld the G.O. and dismissed all petitions. Justice Gupta, due to retire from SC within three days (on October 16) of this verdict, would have surely pleased some biased elements and their political mentors, but could not send a positive message to our girl students. Our slogan is “Save the girl, educate the girl”. But the verdict factually tells, “Don’t educate the girl if her head is covered.”
In his lengthy judgment spread over 113 pages/ 116 paragraphs, Justice Gupta held, “The religious belief cannot be carried to a secular school maintained out of State funds.” He also concurred with the Karnataka government, saying, “it was only to promote uniformity and encourage a secular environment” in the classroom. But these contentions seem erroneous as they do not concur with the very idea of secularism.
Basically, the concept of being “secular” pertains to the conduct of the “state” and not to the identity and practice of an individual. Since the pre-historical period, our country has been a symbol of ‘secularism’ in collective conduct, studded with the deep religiosity of individuals. The people, even migrants with alien faith and religious practices, have had unrestricted freedom of religion. Secularism is essentially the character of a state; that means “officially neutral in matters of religion, supporting neither religion nor irreligion.” The secularism of the state does not stop a person to adorn religious attire and rule the state. Certainly, it would not harm the secular character of an institution if a student covers the head. In fact, it hurts the spirit of secularism if she is stopped because of her religious identity. Ironically, the state is increasingly abdicating from secular ethos but demands people to colour uniformly.
The action is also regressive. Neither ‘dress uniformity’ nor a ‘religious identity-free environment in the classroom’ is the key to promoting the girl-education. The G.O. deprived many girls to take their examinations and forced many to discontinue their education. Unfortunately, it happened in Karnataka where the rise of Muslim girls in the field of education has been remarkable.
Justice Gupta also examined the question, “whether the hijab is an essential religious practice.” He dealt with the issue at great length and upheld HC’s adverse opinion. Professor Faizan Mustafa, an eminent scholar of law, is of the opinion that adjudicating on religious issues of the faith, is not in the domain of the courts. This is the part of the clergy, and the Judges are not trained for the task.
Justice Sudhanshu Dhulia, the other judge on the bench, also observed, “In the Ram Janmabhoomi Case this Court had cautioned not to venture into areas of theology with which the Courts are not well equipped. There may be a huge diversity of views within any religion and to choose one over others may not be correct. Courts should steer clear from interpreting religious scriptures.” He quoted, “This Court, as a secular institution, set up under a constitutional regime must steer clear from choosing one among many possible interpretations of theological doctrine and must defer to the safer course of accepting the faith and belief of the worshipper.”
Naturally what Justice Gupta deduced cannot have universal acceptance or rejection by the community because different scholars of Islamic laws have given different views and explanations. Muslim women also adhere to different practices. However, covering the head in public has been part of our age-old culture, adopted by women irrespective of their caste, creed or faith. Many still follow it faithfully. What is objectionable if Muslim girls come forward and practise the same? To be irritated by seeing a Muslim girl with a covered head is nothing but gross ignorance about widely adhered traditions in Indian culture and secular ethos.
Justice Dhulia, in his divergent verdict, wrote: “In my opinion, the question of Essential Religious Practices (ERP), was not at all relevant in the determination of the dispute before the Court. I say this because when protection is sought under Article 25(1) of the Constitution of India, as is being done in the present case; it is not required for an individual to establish that what he or she asserts is an ERP. It may simply be any religious practice, a matter of faith or conscience. Yes, what is asserted as a Right should not go against “public order, morality, and health,” and of course, it is subject to other provisions of Part III of the Constitution.” Obviously, insisting to cover self-head, is not in any way against, ‘public order, morality, and health’.
Justice Dhulia categorically said, “The High Court took a wrong path. It is ultimately a matter of choice and Article 19(1) (a) and 25(1). It is a matter of choice, nothing more and nothing less.”
He further said that the foremost question on his mind was the education of the girl child. He noted that it is not easy for a Muslim girl to get proper education. He pointedly asked, “Are we making her life any better? It is in the common knowledge that a girl child primarily in rural and semi-rural areas has a lot of difficulties, they have to do daily chores before she goes to school. There are other difficulties as well. Are we making her life any better? That was also a question in my mind.”
Justice Dhulia wrote, “I have quashed the Government Order of February 5 and have ordered the removal of the restrictions.”
Now the matter is on the table of CJI. He will decide the next step.
[The writer is Chairman of Forum for Civil Rights. mail: [email protected])