During the hearing of the hijab ban case earlier this week, Karnataka High Court passed an interim order, banning students from wearing any religious attire to educational institutions, be it a hijab or bhagwa shawl, until it disposes of the case.
Though the High Court is yet to decide on the issue that has sparked protests across the country, several people have argued that this interim order has resulted in a temporary suspension of fundamental freedoms.
Muslim girls students have also filed appeals before the Supreme Court. This order has divided opinion on whether it results in impinging upon fundamental rights of the petitioners and other Muslim students.
Legal news website Bar & Bench spoke to a few experts who clarified the issue through a legal lens. The experts include, Senior Advocates Meenakshi Arora, Siddhartha Dave and Anjana Prakash, Advocates J Sai Deepak, Vrinda Grover, Nikhil Mehra and Amin Solkar.
Senior Advocate Meenakshi Arora told the legal news website, that in a democracy, different yardsticks cannot be applied for different religions. She said, “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.”
“Therefore, Hijab does not fall in any such category,” she said adding that today it is Hijab, tomorrow it can be any other attire, which some self-righteous groups may consider alien or non-conforming to the Hindu ethos.
“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,” she added.
Meanwhile, Advocate J Sai Deepak said 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.
According to him, the rule does not discriminate against any single community. “Whether the rule is a reasonable restriction or not as per 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.”
“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,” said Advocate Vrinda Grover.
The interim order appears facially neutral, Grover told Bar and Bench, adding that the effect of this 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.”
She further noted that uniformity does not ensure equality. And the juxtaposing of use of saffron shawls with the hijab or head scarf is a false inequivalence. Hijab and saffron scarves cannot be treated as similar.”
“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,” Grover said.
Senior Advocate Siddhartha Dave the decision of the Karnataka State government regarding the uniform 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.
Speaking to Bar and Bench, he added that 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.”
According to 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.”
“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,” he said.
“Therefore, the college, has a compelling interest to frame rules relating to the wearing of a uniform. Even on that score, he said adding the competence of the rules cannot be questioned,”
Advocate Amin Solkar said the Constitution has bestowed fundamental rights to be treated equally and the freedom to practice and safeguard one’s own religion. “But has not given anyone the right to criticize and interfere into the rituals and practices of other religions, however, till now it is not offensive or against the law.”
He told Bar and Bench that 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.”
Therefore, the courts suo motu should 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,” he added.
Talking to the legal news website, Senior Advocate Anjana Prakash pointing out two aspects, said, “firstly, it’s 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. Secondly it’s the power of an institution in relation to a citizen.”
Therefore, legally, wearing a religious identity on your person is no offence under the law, Prakash said.
“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,” she added.
The full bench of Karnataka High Court on February 14, Monday will hear 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.
