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THE HIJAB CASE

Judicial letdown: Karnataka High Court upholds ban on hijab in classrooms

Print edition : Apr 08, 2022 T+T-
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Hijab-clad students of Government First Grade College at Kaup in Udupi district who refused to attend classes without the hijab, on March 16.

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Khazi Jayabunnisa Mohiuddin delivered the verdict in the hijab case in the Karnataka High Court in Bengaluru on March 15.

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Justice Krishna S. Dixit.

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Justice Khazi Jayabunnisa Mohiuddin.

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Police personnel deployed outside the Karnataka High Court on March 15 when the court delivered the verdict upholding the hijab ban.

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Shops and other business establishments closed in Udupi on March 17 following a call for State-wide bandh against the High Court order on hijab.

The Karnataka High Court verdict upholding the ban on the hijab in the classroom on the grounds that it “does not form a part of essential religious practice in Islamic faith” dashes the hopes of Muslim girls seeking to exercise their choice.

IN an interview in early February, three of the six girls who insisted on wearing the hijab (headscarf) in their classroom at Government Girls Pre-University College in Udupi and had filed a writ petition in the Karnataka High Court, spoke about their ambitions in life. Aliya Assadi said that she wanted to be a wildlife photographer. Hazra Shifa had an unusual but specific career choice: she wanted to be a cardiovascular technician. A.H. Almas said her “diehard, all-time ambition” was to become a pilot. While Almas acknowledged that her ambition could remain unrealised because of the kerfuffle around the hijab issue, the three girls, like all enthusiastic teenagers, remained hopeful because at that time the Karnataka High Court had not yet taken up the case for hearing.

The girls seemed to have lost some of that confidence on March 15 when five of them addressed a press conference at the Udupi Press Club a few hours after the High Court delivered a judgment reiterating the State government’s direction that Muslim girl students could not wear headscarves in the classrooms of government schools and pre-university colleges. Aliya Assadi and Almas, who interacted with the media on behalf of the five girls, said they were “disappointed” and felt “betrayed” by the verdict and that they had “mentally collapsed”.

Almas said: “If B.R. Ambedkar were alive today, he would have cried. Is uniform more important to them than our education? They are the ones making us illiterate. Both our religion and education are important for us.” Aliya Assadi said: “We will not go to our classes without the hijab and we will fight for it in every legal way.” As journalists continued to pose questions to the five teenagers, Almas said with a tinge of exasperation: “We have been telling the same story to the media for the past three months, but no justice has prevailed. We are citizens of this country and we are not treated equally. What more do you want us to say?” Implicit in this irritated response of Almas was the acknowledgement that their hopes were shattered for the time being.

Court’s basic questions

The highly anticipated verdict of the three-judge bench consisting of Chief Justice Ritu Raj Awasthi and Justices Krishna S. Dixit and Khazi Jaibunnisa Mohiuddin was delivered at 10:30 a.m. on March 15. The court had reserved its judgment on February 25 following 11 days of arguments. The 129-page unanimous judgment broke down the prayers contained in the clutch of petitions that had accumulated on the issue into four basic questions:

The first question was “whether wearing hijab /headscarf is part of the ‘ essential religious practice’ in Islamic faith protected under Article 25 of the Constitution?” The court’s verdict on this question was that “wearing of hijab by Muslim women does not form a part of essential religious practice in Islamic faith”.

Also read: The hijab ban threatens Muslim women’s access to education

The second question was whether the “prescription of school uniform is not legally permissible, as being violative of the petitioners Fundamental Rights inter alia guaranteed under Articles 19(1)(a), (i.e., freedom of expression) and 21, (i.e., privacy) of the Constitution?” To this, the court’s response was that “the prescription of school uniform is only a reasonable restriction constitutionally permissible which the students cannot object to”.

The third question was on the validity of the contentious Government Order (G.O.) issued on February 5 that banned the wearing of headscarves in government schools and allowed CDCs (College Development Committees) to decide on the issue in pre-university colleges. (In an article titled “Tearing the social fabric” in Frontline dated March 11, it was stated that the G.O. “disingenuously created a false equivalence between Muslim girls who wore the headscarves as part of their faith and Hindu students who were wearing the saffron shawls only to counter the Muslim girls”. On the question of the G.O., the court stated that “no case is made out for its invalidation”.

The fourth question was whether “any case can be made out … for issuance of direction for initiating disciplinary enquiry against respondents No. 6 to 14 and for the issuance of a Writ of Quo Warranto [“By what authority or warrant”] against respondents No. 15 & 16?” Respondents No. 6 to 14 were the principal, vice principal and teachers at the Government Girls Pre-University College in Udupi, while respondents Nos. 15 and 16 were Raghupathi Bhat (Member of the Legislative Assembly of Udupi and president of the CDC) and Yashpal A. Suvarna (vice chairman of the CDC and member of the Bharatiya Janata Party). This demand of the petitioners, too, was rejected.

Hijab-wearing students turned away

Since the pronouncement of the verdict, responses to it have ranged from jubilation to deep despair. Members of the BJP in Karnataka, who have been accused of ‘manufacturing’ the controversy for political gains, welcomed the verdict with Yashpal Suvarna accusing the girls of being “terrorists trained by a terror outfit”. The judgment has led to the further marginalisation of hijab-wearing Muslim students, groups of whom were turned away from colleges in the districts of Yadgir, Raichur, Hassan and Bengaluru Rural on March 15 and 16 and not allowed to appear for their internal examination, which precedes the crucial Pre-University College (PUC), or Class 12, final exam. This has caused real concern for the future of the girls’ education. There is also an apprehension that private educational institutions (both schools and PUC) and degree colleges could also devise guidelines restricting the hijab from classrooms.

Also read: How the right wing attacks Muslim women

On March 17, an unnatural calmness prevailed in the usually bustling parts of Bengaluru where significant populations of Muslims did business and resided after a State-wide bandh call was issued by the Ameer-e-Shariat (chief theologian) of Karnataka, Maulana Sagir Ahmad Khan Rashadi. Traders in localities around Shivajinagar, City (K.R.) Market, Tannery (Dr Babasaheb Ambedkar) Road and the shopping hub of Commercial Street downed their shutters. With Section 144 of the Indian Penal Code in place across the State for a week following the court judgment, the bandh was the only way in which the Muslim community could express its dismay. In visuals that have emerged on social media, the bandh was similarly observed in other parts of the State as well with Muslim-dominated localities endorsing the call.

Sense of alienation

Speaking to Frontline , M.A. Siraj, Associate Editor of News Trail , conveyed the profound sense of distress that pervaded the Muslim community after the judgment: “The sense of alienation among Muslims is acute. They are economically deprived, educationally backward and politically underrepresented. The RSS [Rashtriya Swayamsewak Sangh]-BJP dispensation is now targeting them for social exclusion through its hate-mongering campaign. All measures that could sharpen social fault lines within society are being taken and exploited to tap political benefits accruing from communal polarisation. The latest to be weaponised is hijab and uniform. In the hijab case, the Karnataka High Court applied the touchstone of ‘essential and integral features of religion’. What was being contested was not ‘hijab instead of uniform’ but ‘hijab as an accessory to uniform’ for Muslim girls. The court itself framed the ‘essential features of religion’ for the case to be decided.”

The hijab judgment has been criticised widely by legal scholars. Writing in The Hindu , legal commentator Suhrith Parthasarathy stated that the judgment “has struck a blow against each of these principles—liberty, equality and fraternity”. Analysing the judgment on his blog , legal theorist Gautam Bhatia called the judgment “incorrect”, urging that it “should be overturned on appeal”. According to Bhatia, the “crucial error the court makes is that it sanctifies the uniform instead of sanctifying education”.

Bhatia also pointed out that the framing of the argument by the petitioners’ counsel “in terms of the essential religious practices test is unsatisfactory” as it reduces “the entire range of complex reasons for why one might wear the hijab to one overarching claim: that it was a religious command that brooked no disobedience”.

However, for B.T. Venkatesh, a human rights advocate based in Bengaluru, the onus of looking beyond the prayers contained in the petitions fell on the court. Speaking to Frontline , Venkatesh said: “The way jurisprudence has developed in this country after the Kesavananda case [ Kesavananda Bharati vs State of Kerala, 1970 ] is that the court can look into other aspects of an issue apart from what is contained in the prayer. The court could easily have considered the case to be one of woman’s choice and individual dignity as the judges of the High Court and the Supreme Court are the custodians of law.”

Also read: Tearing the social fabric

Former chairperson of the Karnataka State Commission for Backward Classes, C.S. Dwarakanath, said that one issue in the judgment that troubled him was that “in the Ram Janmabhoomi verdict that was given by the S.C. [in 2019], faith and belief are privileged whereas in the hijab judgment the honourable judges focus intensively on Islamic sources while presenting their written argument and not on issues of faith and belief.”

Lawyer and author Arvind Narrain, who has extensively discussed the “easy complicity between the executive and judiciary since 2014” in his book India’s Undeclared Emergency: Constitutionalism and the Politics of Resistance (2022) (See “ Countering the Totalitarian StateFrontline , March 25, 2022), made two observations: First, “The subjectivity of the judges is clearly on display as their opinions do not follow the law (logical precedent) in the strict sense.” (Narrain made this observation in the context of a South African court judgment allowing a Hindu girl to wear a nose-ring to school, which was cited by one of the petitioner’s counsels and which also finds mention in the final judgment.) Second, “Their outright rejection of the proposal of reasonable accommodation goes against the very nature of the judicial function which is to balance competing interests which means that the judgment should have found a way to balance between the students’ interests and the schools’ interests.”

Senior advocate and social activist S. Balan pointed out that the judgment would lead to a “lot of problems”. “Earlier Muslim women were not going to schools but now they are going to school in large numbers but that right is being taken away from them,” he said. Development educationist Niranjanaradhya V.P. feared that “the court judgment may lead to physical or sexual violence against hijab-wearing girls. Their lives may be under threat. This was not expected in the year in which India was celebrating 75 years of Independence.” Niranjanaradhya also pointed out that the chairman of the CDC is the local MLA: “What kind of safeguards can Muslim hijab-wearing girls get from a BJP MLA? There is a clear conflict of interest here. We, who have been working in the education sector, and working towards universalisation of education, whatever strides we have made are futile.”

According to Muzaffar Assadi, professor of political science at the University of Mysore, the BJP will certainly attempt to make political gains from the issue as Karnataka prepares for the Assembly election slated to be held in early 2023. “The BJP thrives on such communal issues. We are already seeing how they are trying to create a sense of victimhood among Hindus through encouragement of films such as The Kashmir Files . If Muslim girls protest the hijab judgment, the BJP will portray it as Muslims wanting preferential treatment even after the court has ruled on it. There has been a rise in the communal temperature in the State over the past few months and polarisation will certainly help the BJP,” he said.

On March 15, Niha Naaz, a student, appealed to the Supreme Court against the High Court verdict. When the matter will be listed by the apex court is not known. But the immediate concern of the six girls from Udupi and thousands of other hijab-wearing Muslim girls in Karnataka is whether they will be allowed to appear for the PUC final examinations that commence on April 22.

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