By Mohammad Naushad Khan
The Karnataka High Court’s decision on the Hijab issue has complicated the situation rather than resolving it by introducing a new dimension of essentiality. The High Court was expected to rule on the Hijab based on constitutional provisions regarding freedom of religion, dress code, rather than the essentiality of the Hijab.
Such kind of judgement is likely to set a wrong precedent where everything would be looked down through the prism of essentiality and not on the basis of fundamental and constitutional rights. The matter is now in the Supreme Court and it is believed that the Apex Court would decide on the merit of the case in the light of Constitution and not on essentialities of Hijab.
According to Sanjay Hegde, senior Supreme Court lawyer, “The case was fought not for one religion alone, but for the constitutional rights of every Indian, in matters of speech, attire and conscience. The High Court was considering the case through the lens of uniforms alone, but the judgment may have far-reaching implications in other spheres.”
Hedge added, “It makes a dichotomy between freedom of religion and freedom of conscience as though the two were mutually exclusive. The logic of this judgment may not be restricted to the Hijab alone and may extend to several other items of attire. In the garb of uniformity and discipline, a state mandated monoculture might descend upon a diverse country.”
Advocate N.D. Pancholi, a senior Standing Counsel in Delhi High Court and Supreme Court and President of Delhi National Office Peoples Union for Civil Liberties (PUCL), said, “The High Court order is totally wrong and unconstitutional. The main and essential objective of educational institutions is to promote education. The court should have asked the question: ‘How ban on Hijab would help in promoting education in schools?’ The obvious answer is that it would not. On the other hand it would deprive some students from getting education as these students find it difficult to attend school without Hijab.
“Thus the ban on Hijab will defeat the main objective of educational goal while it does not make any contribution to the main objective. Promotion of education serves as a strong foundation of a democratic society to thrive, not uniformity.”
Dushyant Dave, senior Supreme Court lawyer , who is also former president of the Supreme Court Bar Association, in an interview with Karan Thapar, The Wire has reasonably argued that in applying the so-called essentiality test to the question, is the Hijab an integral part of Islam, the Karnataka High Court has misunderstood the Supreme Court’s 1954 Shirur Mutt judgment (which established the test) and, therefore, wrongly applied this test.
“The 1954 judgment also contains a definition of religion which is so wide and all-embracing that it includes different types of food and dress which believers consider essential to their faith. He says that if Muslim girls consider the Hijab as integral to their faith, then it is. The Hijab is clearly covered by the 1954 judgment’s definition of religion,” said Dave.
The Shirur Mutt case (1954) established that the term “religion” encompasses all “integral” rituals and practices of a faith. The SC assumed responsibility for determining what is essential. The court stated that the religious question will be decided based on what the religious group thought essential or crucial. The “essentiality test” is what it’s called. However, this exercise yields ambiguous outcomes and tends to take the court into territory beyond its purview.
“Article 25 has been frequently applied to take away the practices of Muslims. The other minorities have still been treated better. Was Article 25 framed for this day to see that essential practice concept will come in and practices of one community shall keep vanishing through the court process,” argued MR Shamshad, Supreme Court lawyer.
“The Karnataka High Court’s decision upholding ban on Hijab in classrooms is highly problematic and distressing. It overlooks the key issue of access to education and instead includes an unnecessary, misinformed and lengthy treatise on the place of Hijab in the Islamic faith. The court has also given a particular meaning to uniform and dress code, where the stress is on homogeneity rather than uniformity. The principles of tolerance, balance and accommodation that are indispensable in a plural, multi-religious and culturally diverse country like India, have been ignored,” said Fawaz Shaheen, a researcher at Quill Foundation, an autonomous research and advocacy group.