A three-judge bench of the Karnataka High Court on 15 March upheld the ban by state-level public schools and pre-university colleges on hijab worn by Muslim girl students. The Government Order (GO) of 5 February 2022 that directed the schools to prescribe uniforms came amidst the violent, divisive politics around the issue. Muslim girls, who were the petitioners, had claimed the right to sport hijab with a caveat that they would also wear the school uniform. The Bharatiya Janta Party-led Karnataka state government also argued that the hijab is not a part of the essential religious practice of Islam and is thus open to state-imposed restrictions.
Interestingly, the court called the pleadings of respondents “inarticulate” but ended up endorsing most of their arguments in its final ruling. The hijab verdict resonates with the Babri Masjid case where the court declared that the temple should be made based on ‘faith’ on the demolition site, despite endorsing the absence of historical evidence of the destruction of the temple there.
The issue of hijab, as it has been made out to be, has several social and political layers. At least five major critical points can emerge from the 129-page judgment. These observations, of course, are inexhaustive and subject to deeper analysis.
Firstly, the High Court has declared in this case that all fundamental rights regarding freedom of expression, privacy, and religion are subject to restrictions under the Indian Constitution. However, one finds it hard to locate the exact ground of restriction that the court is trying to invoke. Article 25 (advocating freedom of religion) is subject only to public order, health and morality. Article 19(1) (a) (freedom of speech and expression) also has public order as one of the grounds for reasonable restriction. However, none of these categories of restrictions is applied on the facts, and a general statement like- all the aforementioned rights are “susceptible to reasonable restrictions” is thrown on the petitioners to vindicate the ban. When by its own admission, the court considers it to be a matter of “enormous public importance,” it is surprising to see why there is an absence of judicial rigour in diving deeper into the issue. When the petitioners argued that “disruption of public order is not by those who wear this apparel but by those who want to oppose it violently,” the court simply responded by saying that “public order” mentioned in GO is different from “public order” in the Constitution. It even agreed that the GO “could have been well drafted” but shrugged aside the question of inadequacy in invoking public order as a justification for the ban.
Secondly, if one may take the liberty to claim, the court has been irresponsible in dealing with sources of Islamic law. It is the uncontested position of law that Quran and Ahadith/Sunnah form the primary sources of Islamic law. The court refrained from any investigation of legal resources beyond what is explicitly mentioned in the Quran, despite the citation of Ahadith prescribing the dress code. It proclaimed: “whichever be the religion, whatever is stated in the scriptures, does not become per se mandatory in a wholesale way.” Referring to hijab, the judges further commented that what is “directory” or “recommendatory” in the Quran “cannot be metamorphosed into mandatory dicta by Ahadith.” This was followed by the application of the “essential practice” test (a doctrine criticised for being a slippery slope as judges should not behave like clergy), and, consequently, the ban was upheld because, in the court’s view, hijab was not an essential practice of Islam. At best, it could be seen as a “cultural practice.” However, the previous legal traditions had treated both Quran and Ahadith as primary sources of Islamic law.
Further, the petitioners argued that if the hijab has been allowed in Kendriya Vidyalayas (Central Government Schools), it is futile to ban it in Karnataka. The argument was again rejected because, for the court, permitting hijab could lead to “social separateness” and would violate the aforementioned GO that facilitated the creation of “safe space where such divisive lines should have no space.” Only judges would be able to answer how the hijab can lead to the creation of unsafe spaces for non-Muslims.
Next, in the latter part of the judgment court engages with the validity of the creation of School/College Development Committees. It said: “Merely because these Committees are headed by the local Member of Legislative Assembly, we cannot hastily jump to the conclusion that their formation is bad.” For the court, the association with MLAs (most of them belonging to the ruling party) can only facilitate the release of funds for the development of schools. The contention that their association will negatively affect the campuses because of the influence that they can wield over institutional administration was rejected because no law could be brought to the court’s notice that could challenge MLAs’ induction in the committees. Perhaps judges could have availed the opportunity to see how the precedents in the Supreme Court had dealt with the questions of ‘malice’ and arbitrariness.
The judgment ends on the following note: “The way, hijab imbroglio unfolded gives scope for the argument that some ‘unseen hands’ are at work to engineer social unrest and disharmony.” Here, the question of choice was ignored because the court seemed more concerned about “how long all the petitioners have been wearing hijab.” The preamble of the Karnataka Education Act, 1983 was cited to give the impression that donning of headgear goes against “cultivating a scientific and secular outlook through education.” Judges also accepted the argument of the state that public schools are “qualified public spaces” where the substantive rights metamorphose into derivative rights. Seeing this, one is reminded of Tinker vs. Des Moines (1969, Supreme Court of the United States) when the U.S court affirmed the freedom of the protesting students with black armbands in public schools against the Vietnam War. It was declared that the kids do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
Lastly, the Karnataka High Court employs useful selectivity regarding accepting or rejecting the rationale of foreign decisions. For example, while defending their right to wear hijab in accordance with the school uniform, petitioners heavily relied on the famous ruling in KwaZulu-Natal and Others vs. Pillay (2007). In this case, an objection was raised against Sunali, a Hindu girl studying in the public school of South Africa, because she wore a nose stud to her classroom as a part of her religious and cultural expression. Chief Justice Pius Langa of the Constitutional Court in South Africa defended her right in the following words:
Preventing her from wearing it [nose stud] for several hours of each school day would undermine the practice and therefore constitute a significant infringement of her religious and cultural identity. What is relevant is the symbolic effect of denying her the right to wear it for even a short period; it sends a message that Sunali, her religion and her culture are not welcome…The protection of voluntary as well as obligatory practices also conforms to the Constitution’s commitment to affirming diversity. It is a commitment that is totally in accord with this nation’s decisive break from its history of intolerance and exclusion. Differentiating between mandatory and voluntary practices does not celebrate or affirm diversity, it simply permits it. That falls short of our constitutional project which not only affirms diversity but promotes and celebrates it. We cannot celebrate diversity by permitting it only when no other option remains. (emphasis added).
In the hijab case, the judges refused to accept the observations of this case because they were more interested in the ‘ocular’ significance of the apparel rather than the idea of celebrating diversity and refraining from deciding essential practices of any religion.
As the case has now gone to the Supreme Court for urgent hearing, any reversal of the judgment seems unlikely for one reason. The Supreme Court’s hitherto has displayed an unconcerned treatment to Muslim issues such as the call for genocide at Dharam Sansad, petitions against CAA, revocation of Kashmir’s special status, political prisoners, state-induced violence at Jamia Millia Islamia and Aligarh Muslim University, persecution of Muslims and Tablighi Jamaat during COVID-19, demonisation, and deportation of Rohingyas and the Babri Masjid case. The court applied no suo moto cognisance in the matters like- the killings of anti-CAA protesters, calls made for killing Muslims at Jantar Mantar by the mob, or, in some cases, even by the Union Ministers.
The fallacies in the judgment are deep and replete with misapplication of the law. As the last bastion of justice, the Supreme Court is now expected to declare the notorious GO bad in constitution and administrative law. It is also expected to draw principles on the intervention of the judiciary in religious or cultural practices because intervening on the mere basis of “restrictions” will make judicial scrutiny more whimsical than objective. Unless the judiciary is in a position to spell out the specific grounds, it must refrain from venturing into sensitive religious affairs. The court must ask- since when articles of faith like hijab, turban, tilak or crucifix have become being the symbols of “social separateness?”
Dr. Mohammad Umar is an Assistant Professor Law at the Bennett University. His work on Muslim incarceration in India during Covid-19 was published by Chapman University and also featured on WHO’s reference literature on the pandemic.