By Sanjay Raman Sinha
The decision of the BJP-led Basavaraj Bommai government in Karnataka to enforce dress code in educational institutions has snowballed into a major controversy. As pitched battles are being fought in streets, an equally pugnacious legal battle is unfolding in the Karnataka High Court. Diverse judgments of yesteryear are being pitched to argue the case. The Quran and Hadith are being quoted in the court of law to buttress claims.
The hijab controversy began after some students in the Government Pre-University College in Udipi started wearing hijab in January and were asked to leave the classrooms. When the girl students took to protest, some Hindu students started wearing saffron scarves in their protest marches. Later on, the Karnataka High Court imposed a temporary ban on the wearing of all religious symbols in government schools and colleges.
A petition has been filed in the Karnataka High Court demanding permission to attend classes wearing hijab. Later, the matter was referred to a bigger bench. The bench, comprising Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and JM Khazi is hearing the case.
During the hearing, the plaintiff’s lawyer Advocate Devadatt Kamat had asked: “How can a girl going to school wearing hijab become a public order issue?” The state government, represented by Advocate General PK Navadgi, had argued that reasonable restrictions have to be imposed on the wearing hijab in an educational institution to maintain a uniform dress code. Only state-funded institutions are bound by the rules. The state government had also told the High Court that recognizing hijab as an essential religious practice of Islam would compel Muslim women to wear it.
Maulana Kaari Ishaq Gaura, the Islamic scholar at Deoband, said:
“The hijab issue has been politicized. The students who should have been involved in the betterment of their careers are now engaged in a senseless fight with each other and maligning each other’s faith over the hijab issue. It is a sad spectacle. India is a democratic country wherein people have the right to profess their religions freely and respect other’s religion. What is happening now should be denounced.”
The fact of the matter is that what appears to be an administrative matter has constitutional connotations as the issues of fundamental rights and right to religious practices are linked with it.
Justice Vimlesh Shukla, a former judge of the Allahabad High Court, explained:
“The central issue is whether hijab is an essential part of Islam. The right of freedom to dress is a recognized right and it can be curtailed only subject to recognized restrictions. The educational institutions also have laws and rights. The students are also governed by the rules of institutions of which they are a part. Hence, in case of clash of the right to dress and rules of educational institutions, the latter will override the former. The question is whether the right to dress is a fundamental right and hence it can gain supremacy over institutional rules. Various High Courts have given conflicting judgments on the matter. Hence, the matter has been referred to a bigger bench for a decision. The second question is whether the right of educational institutions to enforce rules on their students is absolute or not. Are these rights above the rights of the student’s to dress? If the right to dress is a fundamental right and is being violated by educational institutions’ insistence against hijab, then only the courts can intervene.”
Dr GV Rao, senior advocate at the Supreme Court, said:
“In a study conducted of a sample population of the subcontinent, a gene similarity was found. We can hence say that we are a community, and despite religious differences, we are brothers and sisters by DNA. We should improve the shortcomings of our religious practices. Just as we removed the Sati tradition through reforms, we should similarly modernize our customs. Talking of privacy, we can’t equate privacy we get at home to that of public places. Hijab has to be looked in this context.”
The hijab is a headscarf which has historically been worn by the Muslim women across the world. Encyclopedia Britannica says: “With social change, Muslim women gained significant access to higher education and the job market, and hijab became integral to public life in Muslim countries. Veiling was never a uniform practice, it changed from country to country…” Hijab is also a means to assert one’s social, cultural, religious and individual identity. It embraces concept of piety and self respect as well.
Gaura explained:
“Islam has accorded a very special place to women. They have been considered priceless, and hence they are veiled and protected. Just as the Quran has been considered holy and is kept under wraps.”
Inherent in the hijab controversy is the question that in case of a conflict between the State (secular) and religious laws, which should prevail. Clothing is a form of expression under Article 19(1)(a). The Supreme Court in Nalsa vs UOI held that no restrictions can be placed on one’s choice of dressing, which can only be restricted under reasonable restrictions.
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Prof S Suryaprakash, Vice-Chancellor, Damodaram Sanjivayya National Law University (DSNLU), Visakhapatnam, tried to analyse the root of the problem. He said:
“The Constitution is very clear on this subject. In January, the incident first came to light when contrary to the college rules, six students came to college wearing hijab and were asked to leave. There is a contract between the college and students regarding rules. Were the rules changed after the students took admission or did the students start wearing hijab after a certain time? This is not clear. Now at the macro level, many questions have been raised regarding the legal validity of hijab and its place in Islam.”
The issue has a social dimension as well. A 2020 report of the National Statistical Office on “Household Social Consumption: Education”, reveals that 21.9% Muslim girls in the age group of 3-35 years had never enrolled in any academic programme. With this is mind, it is incumbent on the State to endorse policies which prevent exclusion of hijab-wearing school girls. However, this very girl’s education argument is being bandied by the rightist groups to bolster their case.
Vinod Bansal, spokesperson of the Vishwa Hindu Parishad, asserted:
“The Supreme Court and various High Courts have, from time to time, given verdicts that hold that burqa is not an essential part of Islam. Bhagwa (saffron) and Hindu have no connection with religious fundamentalism. Hindus are progressive in nature and very accommodative and flexible with respect to any issue. It is sad that even after seven decades of Independence, we have not been able to educate our daughters. In Muslims, the illiteracy rate is 42.7%.”
Dealing with the core issue of the essentiality of hijab in the Amnah Bint Basheer vs CBSE case of 2016, Justice Mustaque had applied the test of essential religious practices as propounded by the Supreme Court in The Commissioner of Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt case of 1954. In the Shirur Mutt case, for the first time, it was held that the essentiality of a religious practice is primarily to be ascertained with reference to the doctrines of that religion itself. Justice Mustaque had allowed the wearing of hijab for exam-appearing students but also allowed invigilators to frisk such candidates, including removing the scarf.
GV Rao had been involved in an essential practice case. He said:
“In 1996 in the AS Narayan Dixit case relating to the Tirupati Devasthanam, the matter of essential practice was raised for the first time. Herein, the Supreme Court gave the definition of the test—the essential and integral part of religion to be ascertained from the doctrine of that religion. Hijab has been considered a social practice and it is not an integral part of religion. The school dress code is implemented to bring uniformity amongst students. People who are using the hijab issue for political ends are wrong people. If every religious group wants to adhere to its dress code, how can institutional discipline be maintained?”
The Karnataka government’s order has raked up the issue of constitutional morality. Constitutional morality demands that both individual and collective interests are satisfied. Here, the rights of a minority group is at stake. The Karnataka High Court has to test the validity of the plea against the touchstone of the Constitution. In Navtej Johar’s judgment of 2018, the Supreme Court had observed that “the very purpose of the fundamental rights chapter in the Constitution of India is to withdraw the subject of liberty and dignity of the individual and place such subject beyond the reach of majoritarian governments so that constitutional morality can be applied by this court to give effect to the rights, among others, of discrete and insular minorities”.
Justice Shukla held:
“There is no bias in the order of the state government. In pursuance of their supervisory power, the state government has issued a mandate that uniform dress should be adhered to in educational institutions. Now, it is on the wisdom of school/college authorities that they enforce the rules. The matter should have finished there. Later on, the political parties and fanatic groups have added the religious angle to it. Since election is on in five states, political parties are fishing in troubled waters. Just two days prior to voting, it has become a volatile issue.”
Currently, all the issues of essentiality of religious practice have been clubbed together and referred to a larger Constitution bench (Sabarimala review bench) on questions on the ambit and scope of religious freedom practised by various faiths across the country. If the hijab case reaches the Supreme Court, it might well be included in the review bench. However, for the time being, all eyes are on the Karnataka High Court judgment after which the judicial position will be clear.