Saffron Scarves Are not Same as Hijab Vs Rule of Law: Experts on Karnataka HC Order


Hijab wearing students

Debayan Roy

NEW DELHI – In an interim order passed earlier this week during the hearing of the Hijab Ban case, the Karnataka High Court barred students from wearing any attire of religious significance to educational institutions, be it a hijab or bhagwa shawl, until it disposes of the case.

Though the Court is yet to finally decide on the issue that has sparked protests across the country, and has merely passed an interim order for the time being, some have argued that this interim order has resulted in a temporary suspension of fundamental freedoms.

The order prompted a flurry of appeals before the Supreme Court, and has divided opinion on whether it results in impinging upon fundamental rights of the petitioners and other Muslim girl students.

Senior Advocate Meenakshi Arora

In a democracy, different yardsticks cannot be applied for different religions. Ghungats, bindis, turbans, dupattas, scarves and so on are in a similar league. We are entitled to practice our religious beliefs so long as they are not offensive, abusive, or obstructive to others.

Hijab does not fall in any such category. More importantly, today it is Hijab, tomorrow it can be any other attire, including even salwar kameez, skirts, trousers which some self-righteous groups may consider alien or non-conforming to the Hindu ethos. We have already seen the ugly face of such groups in Bangalore, where women in pubs and bars were attacked.

This has to be nipped in the bud as it is grossly violative of fundamental rights. It also undermines woman’s’ autonomy to choose their own dress code. Lastly, it will deprive a large segment of women and girls of access to education.

Advocate J Sai Deepak

In the facts of the Karnataka Hijab case, it appears that the rule in question has been in force since 1995 under the Karnataka Education Act of 1983, which students of all religions abided by until December 2021. This appears to be the basis of the Karnataka High Court’s order of status quo.

At the interim stage, the presumption is in favour of the observance of the rule in view of the situation as it existed until the end of last year. This is, of course, not a reflection of what the High Court might ultimately hold on the rule’s constitutionality.

As it stands, in my view, the rule does not discriminate against any single community. Whether the rule is a reasonable restriction or not according to the High Court remains to be seen in view of the judgments of other High Courts where the claim of Hijab being integral to the practice of Islam has been rejected.

Advocate Vrinda Grover

The doctrine of balance of convenience and the foundational idea that rights, and not restrictions, are fundamental support to the proposition that interim orders ought to protect and uphold the exercise of rights, pending final judgment.

The import of this interim order is a temporary suspension of a host of fundamental rights, including personal liberty, freedom of expression, decisional autonomy, dignity, right to choice and freedom of conscience.

The interim order appears facially neutral. However, the effect of the interim order will be to disproportionately restrict and impinge on the rights of the Hijab-wearing Muslim women students, and effectively deny them access to educational institutions, pending the final verdict. Uniformity does not ensure equality.

As I understand from the facts, this is not a contestation between religious attires. The juxtaposing of use of saffron shawls with the hijab or head scarf is a false inequivalence. Videos available in the public domain show young Muslim women students wearing Hijab being targeted and intimidated by a mob of young male students sporting saffron shawls as a symbol of aggressive majoritarian bullying, jeopardising the women’s safety in public spaces and interfering with their access to educational institutions.

Prof Faizan Mustafa, NALSAR, Hyderabad

The interim order is a little disappointing for those who believe in the liberty model of governance in educational institutions. Hijab and saffron scarves cannot be treated as similar. Whether wearing of hijab is an essential religious practice or not cannot be decided easily.

The Supreme Court itself has accepted the review of the Sabarimala verdict, though as per the settled law, it was not a case of review and two dissenting judges did say so. In accepting this review, the apex court did concede religious freedom in preference to the right to equality.

The assertion test is better than the essentially test. It clearly says that the right to religion guarantees individuals the right to assert what they feel as an essential religious practice. The dress is indeed part of the freedom of speech and the right to privacy. The State does not have the right to make arbitrary rules.

Today’s liberated and empowered Muslim girls have made their statement that hijab is their choice. I think they should now go back to classes and let the judiciary decide this contentious issue.

Senior Advocate Siddhartha Dave

The decision of the Karnataka State government with respect to uniforms to be worn by students in educational institutions must be examined on the touchstone of constitutional rights of various groups. It is a balancing act between the rights of students to practice their religion, and the State’s endeavour to ensure uniformity in educational institutions.

If wearing the hijab is an essential religious practice, then such a right would be protected under Article 25 of the Constitution. Article 29 provides that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds only on the grounds of religion, race, etc. This would indicate the constitutional goal of ensuring access to education, irrespective of the religion of an individual.

While deciding this issue, the High Court would have to arrive at a conclusion that wearing the hijab is an “essential religious practice” of the members of the community. The State must exercise restraint, and endeavour to protect the rights of minority communities, to ensure that students are not deprived of education merely on the basis of their religious practices.

Advocate Nikhil Mehra

Every rule made by a competent authority comes with the presumption of constitutionality. In order to overcome that presumption, the petitioners must show the prima facie violation of a fundamental right.

After an extensive hearing before the Karnataka High Court before both a single-judge and a Full Bench, I do not believe that presumption was met because the petitioners failed to convince the Court that wearing hijab was an essential practice in Islam. It would have thus been quite extraordinary for the Court to have stayed the rule.

The alternative route was to challenge the competence of the State government to issue the government order (GO) or of the college to frame rules with regard to the wearing of a uniform, which was also not found convincing at a prima facie level.

Bear in mind that the right under Article 25 is made “subject to” the law-making power of a competent body, as long as that law relates to public order, health and morality. The college, therefore, has a compelling interest to frame rules relating to the wearing of a uniform. Therefore, even on that score, the competence of the rules cannot be questioned.

Lastly, it has come to light that the demand to wear a hijab inside the classroom is a recent one and that the same students have been attending classes without the hijab even if they wear the hijab to college. Therefore, the argument on balance of convenience is also not convincingly made out. A stay on a statutory order is extremely rare and requires a prima facie violation of a fundamental, constitutional or statutory rights.

The failure of the petitioners to prima facie establish that wearing hijab is an essential religious practice means that this requirement was not met on a preliminary hearing. Of course, the petitioners may eventually succeed in showing that it is in fact an Islamic essential religious practice. However, even that would not render the interim order illegal on the prima facie arguments presented before the Court thus far.

Advocate Amin Solkar

The Constitution of India has bestowed upon every citizen fundamental rights to be treated equally and the freedom to practice and safeguard one’s own religion. But it does not give anyone the right to criticize and interfere into the rituals and practices of other religions, howsoever critical, so far it is not offensive or against the law.

The present hijab controversy is a non-issue just trying to corrupt the minds of the future generation. Hijab has been followed and practiced by women since centuries by different religions in India. It protects the modesty of a woman.

On one hand, the present government is enacting laws against triple talaq, while on the other hand, it is encouraging hooligans to chase and use criminal force against Muslim women. Does it not amount to outraging the modesty of a woman, thus inviting action under different penal laws of our land?

It is high time that the courts suo motu take action before it is too late, as the issue is misused for political ends. Shutting their eyes or looking the other way is also unconstitutional.

Senior Advocate Anjana Prakash

There are two aspects to it. First, is the right of a citizen who is clearly within his rights to wear what he likes on the strength of powers derived from Article 21. Second is the power of an institution in relation to a citizen.

Legally, wearing a religious identity on your person is no offence under the law. Since all colleges and universities are instruments of the State, they themselves are to subject to the rule of law and have no right to exercise individual opinion or preference in the matter. If they do so evidently, they are flouting the law.

The case will now be again heard by the full bench of Karnataka High Court on February 14, Monday.

The court is now hearing the matter to decide if at all Hijab falls within the domain of essential religious practice among Muslims and the possibility of the government order being struck down.

Courtesy: Bar and Bench

Clarion India - News, Views and Insights about Indian Muslims, Dalits, Minorities, Women and Other Marginalised and Dispossessed Communities.

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