The hijab ban remains a highly polarising subject with even supreme court judges failing to arrive at a consensus. The bench of Justice Hemant Gupta and Justice Sudhanshu Dhulia, that had been hearing a batch of appeals against the Karnataka High Court judgment upholding the hijab ban order of the Karnataka government, has today delivered a split verdict.

While Justice Sudhanshu Dhulia allowed the appeals and set aside the Karnataka HC order, Justice Hemant Gupta dismissed them. In light of this, the matter will now be placed before the Chief Justice of India for appropriate directions.

Brief background of the case

Readers would recall that the Karnataka government had, via a Government Order (GO) dated February 5 that banned clothes “which disturb equality, integrity and public order” in schools and colleges.

Following this, Muslim girls wearing the traditional head scarf were denied entry to many educational institutions across the state. There were widespread protests and counter-protests, and the communal divide grew wider even as right-wing extremists and trolls grew more vicious. The hate spilled out of social media platforms and onto the streets. Newsrooms also became polarised and a series of deeply communal and outright offensive comments were made on TV news debates.

A nuanced approach to the wider issue of access to education for Muslim girls – their bodily agency, privacy and autonomy – especially for girls hailing from conservative families, was rejected, and the entire debate became communally polarised.

Muslim girl students moved court after they were denied entry into educational institutions. On March 15, the Karnataka High Court had upheld the GO. This effectively empowered college development committees of government run colleges and pre-university colleges from banning students from wearing hijabs in the classroom and college premises.

This had led several Muslim girls and their families to challenge the HC order. They argued that the GO discriminated on the basis of bother religion and sex. They further argued that the State had failed to provide reasonable accommodation to a student to exercise her rights under Articles 19 and 21.

Judgment by Justice Sudhanshu Dhulia

According to LiveLaw, in his judgment, Justice Sudhanshu Dhulia held, “The main thrust of my judgment is the entire concept of essential religious practice was not essential to the dispute. The High Court took a wrong path. It is ultimately a matter of choice and Article 14 and 19.” Continuing to bat for the freedom of choice, he further held, “It is a matter of choice, nothing more and nothing less.”

Justice Dhulia also emphasised on another important aspect of the case – the impact of the hijab ban on the education of Muslim girls and women, “The foremost question in my mind was the education of the girl child. Are we making her life any better? That was a question in my mind.”

In his order, Justice Dhulia held, “In my opinion, the question of Essential Religious Practices, which we have also referred in this judgement as ERP, was not at all relevant in the determination of the dispute before the Court. I say this because when protection is sought under Article 25(1) of the Constitution of India, as is being done in the present case, it is not required for an individual to establish that what he or she asserts is an ERP. It may simply be any religious practice, a matter of faith or conscience! Yes, what is asserted as a Right should not go against “public order, morality and health,” and of course, it is subject to other provisions of Part III of the Constitution.”

He further held, “The approach of the High Court could have been different. Instead of straightaway taking the ERP route, as a threshold requirement, the Court could have first examined whether the restriction imposed by the school or the G.O on wearing a hijab, were valid restrictions? Or whether these restrictions are hit by the Doctrine of Proportionality.”

He then quashed the GO and ordered the removal of restrictions, stating that the order in Bijoe Emmanuel squarely covers the issue. That case (Bijoe Emmanuel vs. State of Kerala) revolved around the expulsion of three children who belonged to the Jehovah’s Witnesses sect being expelled from school in July 1985 for refusing to sing the national anthem. The children’s counsel had contended that they belonged to a sect where they only worshiped Jehovah – the Creator and none other, and that it was against the tenets of their religious faith – not the words or the thoughts of the national anthem – but the singing of it. They did not mean any disrespect to the national anthem, and dutifully remained standing when it was sung at school in the morning assembly.

The supreme court bench of Justice OC Reddy had held, “The Fundamental Rights of the appellants under Art. 19(1)(a) and  25(1) have been infringed and they are entitled to be protected. The expulsion of the three children from the school for the reason that because of their conscientiously held religious faith, they do not join the singing of the National Anthem in the morning assembly though they do stand respectfully when the National Anthem is sung, is a violation of the fundamental right to freedom of conscience and freely to profess, practice and propagate religion.” Therefore, the judgment of the High Court was set aside and the court had directed that the children be readmitted to the school.

Justice Dhulia’s judgment relied on this case and he set aside the Karnataka HC judgment and ordered the removal of restrictions, saying, “There shall be no restriction on the wearing of hijab anywhere in schools and colleges in Karnataka.”

Judgment by Justice Hemant Gupta

Justice Hemant Gupta dismissed the appeals as he did not find the Karnataka GO to be “against the ethic of secularism”. It is noteworthy that while hearing the case in September, when Senior Advocate Devadatt Kamat, who was appearing for the Petitioners, submitted that the right to freedom of expression under Article 19 of the Constitution includes dress, it was Justice Gupta who had posed the question, “You can’t take it to illogical ends. Right to dress will include right to undress also?”

In his order dated October 13, Justice Gupta observed, “The concept of fraternity will stand fragmented as the apparent distinction of some of the students wearing headscarf would not form a homogenous group of students in a school where education is to be imparted homogeneously and equally, irrespective of any religious identification mark. The Constitutional goal of fraternity would be defeated if the students are permitted to carry their apparent religious symbols with them to the classroom.”

He further held, “Religion, which is a private affair, has no meaning in a secular school run by the State. The students are free to profess their religion and carry out their religious activities other than when they are attending a classroom where religious identities should be left behind.”

He finally ruled that “secularism is applicable to all citizens, therefore, permitting one religious community to wear their religious symbols would be antithesis to secularism. Thus, the Government Order cannot be said to be against the ethic of secularism or to the objective of the Karnataka Education Act, 1983.”

The entire judgment may be read here: 

Justice Gupta

Justice Dhulia

Related:

Hijab Ban case: SC wonders if right to dress also makes right to undress a fundamental right

BREAKING: Wearing of Hijab not essential religious practice: Karnataka HC

The post It is a matter of choice, nothing more nothing less: Justice Sudhanshu Dhulia in Hijab Ban case appeared first on SabrangIndia.

On Thursday, the Supreme Court delivered a split verdict in the Hijab Ban case. While Justice Sudhanshu Dhulia allowed the appeals and set aside the Karnataka High Court order, Justice Hemant Gupta dismissed them. In light of this, the matter will now be placed before the Chief Justice of India for appropriate directions. Here’s a closer look at Justice Hemant Gupta’s judgment.

Brief background of the case

The origin of the case lies in a Government Order passed by the Karnataka state government on February 5, 2022, that that banned clothes “which disturb equality, integrity and public order” in schools and colleges. In wake of this order, Muslim girls wearing Hijab, which is a traditional head scarf, were denied entry to many educational institutions across the state. Protests and counter-protests followed, communally polarizing statements were made on social media, in television news debates and hate spilled out onto the streets.

All this while, the most important aspects of the entire issue associated with the wider concerns regarding access to education for Muslim girls – their bodily agency, privacy and autonomy – especially for girls hailing from conservative families, appeared to be woefully ignored. On the flip side the emergence of forces like the Popular Front of India (PFI), especially in states like Karnataka, with an avowed programme of re-asserting a conservative brand of Islam, further complicated the matter.

A few Muslim girl students moved the court as they were denied entry into educational institutions. On March 15, the Karnataka High Court had upheld the GO, effectively empowering college development committees of government run colleges and pre-university colleges to ban students from wearing hijabs in the classroom and college premises.

The Muslim girls and their families then challenged the HC order in the Supreme Court, arguing that the GO discriminated on the basis of bother religion and sex. They further argued that the State had failed to provide reasonable accommodation to a student to exercise her rights under Articles 19 and 21.

In the Karnataka high court, both the petitioners, and thereafter the court too, dealt with and then rejected the “essential religious practices argument.” Following this, with detailed citations, Justice Hemant Gupta of the Supreme Court, did the same.

Finally, on Thursday October 13, Justice Hemant Gupta upheld the Karnataka HC order and dismissed the appeals. Let us take a closer look at his judgment.

Secularism – Dharmanirpeksha vs. Panthnirpeksha

In the Preface to his judgment, Justice Gupta examines the concept of secularism in the context of international and Indian history. “The political philosophy of a secular government has been developed in the West in the historical context of the pre-eminence of the established Church and the exercise of power by it over the society and its institutions. The democratic State thereafter gradually replaced and marginalized the influence of the Church. The idea of secularism may have been borrowed in the Indian Constitution from the West; however, it has adopted its own unique brand based on its particular history and exigencies which are far distinct in many ways from secularism as defined and followed in European countries, the United States of America and Australia,” he observes.

He goes on to examining the difference between two Indian words used as a translation of the word secular – Dharmanirpeksha and Panthnirpeksha. “The use of word ‘panthnirpeksh’ in the Constitution brings out the difference in the terms “Dharmanirpeksh” and “Panthnirpeksh”. ‘Panth’, or sect, symbolizes devotion towards any specific belief, way of worship or form of God, but Dharma symbolizes absolute and eternal values which can never change, like the laws of nature. Dharma is what upholds, sustains and results in the well-being and upliftment of the Praja (citizens) and the society as a whole,” he says in his judgment.

It is important to note here, that a similar argument has been made by followers of Hindutva to reject the western concept of secularism where the State has no established religion. They see secularism as treating people from different sects, instead of different faiths, as equal. Liberals meanwhile argue that this ideology only enables the advocacy for a Hindu Rashtra.

सनातन धर्म में “सेक्युलर” शब्द है ही नहीं
परंतु अनेकांतवाद शब्द ज़रूर है

हिंदुत्ववादी अनेकांतवाद के विरुद्ध है
इसलिए सनातन धर्म से दूर हैं pic.twitter.com/mqgu7KG2mj

— Devdutt Pattanaik (@devduttmyth) October 7, 2019

The eleven questions

In his judgment, Justice Gupta addressed the following questions:

“(i) Whether the appeals should be heard along with Kantaru Rajeevaru (Right to Religion, In Re9J) and/or should the present appeals be referred to the Constitution Bench in terms of Article 145(3) of the Constitution?

(ii) Whether the State Government could delegate its decision to implement the wearing of uniform by the College Development Committee or the Board of Management and whether the Government Order insofar as it empowers a College Development Committee to decide on the restriction/prohibition 21 or otherwise on headscarves is ex facie violative of Section 143 of the Act?

(iii) What is ambit and scope of the right to freedom of ‘conscience’ and ‘religion’ under Article 25?

(iv) What is the ambit and scope of essential religious practices under Article 25 of the Constitution?

(v) Whether fundamental rights of freedom of expression under Article 19(1)(a) and right of privacy under Article 21 mutually exclusive or are they complementary to each other; and whether the Government Order does not meet the injunction of reasonableness for the purposes of Article 21 and Article 14?

(vi) Whether the Government Order impinges upon Constitutional promise of fraternity and dignity under the Preamble as well as fundamental duties enumerated under Article 51-A sub-clauses (e) and (f)?

(vii) Whether, if the wearing of hijab is considered as an essential religious practice, the student can seek right to wear headscarf to a secular school as a matter of right?

(viii) Whether a student-citizen in the constitutional scheme is expected to surrender her fundamental rights under Articles 19, 21 and 25 as a pre-condition for accessing education in a State institution?

(ix) Whether in the constitutional scheme, the State is obligated to ensure ‘reasonable accommodation’ to its citizens?

(x) Whether the Government Order is contrary to the legitimate State interest of promoting literacy and education as mandated under Articles 21, 21A, 39(f), 41, 46 and 51A of the Constitution? 22

(xi) Whether the Government Order neither achieves any equitable access to education, nor serves the ethic of secularism, nor is true to the objective of the Karnataka Education Act?”

Essential Religious Practice

Of the eleven questions, two deal with the contentious subject of Essential Religious Practice (ERP):

(iv) What is the ambit and scope of essential religious practices under Article 25 of the Constitution?

(vii) Whether, if the wearing of hijab is considered as an essential religious practice, the student can seek right to wear headscarf to a secular school as a matter of right?

To examine ERP, the judge has referred to the book Mulla’s Mohammedan Law (Fifth edition, 2019), and a translation of the interpretation of the Quran by Abdullah Yusuf Ali, and the Hedaya, commentary on Islamic Laws (Second edition, 1870). Justice Gupta’s judgment also mentions Justice Nariman’s observation in the Shaya Bano case, that “a practice does not acquire the sanction of religion simply because it is permitted”.

Justice Gupta’s judgment says, “The religious belief cannot be carried to a secular school maintained out of State funds. It is open to the students to carry their faith in a school which permits them to wear Hijab or any other mark, may be tilak, which can be identified to a person holding a particular religious belief but the State is within its jurisdiction to direct that the apparent symbols of religious beliefs cannot be carried to school maintained by the State from the State funds. Thus, the practice of wearing hijab could be restricted by the State in terms of the Government Order.”

It notes the arguments by the students, “The argument is that hijab is an additional cloth worn on the head, and that it does not cause any harm to any other person. The argument is based upon Conscience & Religion (Article 25), Culture (Articles 29 and 51-A(f)), Identity (Articles 19 and 21 – Autonomy, Dignity, Choice) and Secularism (Articles 19 and 21 – Autonomy, Dignity, Choice), therefore, the students have been wrongly denied admission to an educational institution on the basis of religion. The contention of the students is that by denying the right to wear headscarf, they have also been denied to attend the classes which stand foul with the mandate of clause (2) of Article 29.”

But Justice Gupta rejects these arguments saying, “I do not find any merit in the said argument. The schools run by the State are open for admission irrespective of any religion, 116 race, caste, language or any of them. Even the Act mandates that the students would be admitted without any restriction on such grounds. However, the students are required to follow the discipline of the school in the matter of uniform. They have no right to be in the school in violation of the mandate of the uniform prescribed under the Statute and the Rules.”

The order includes a reference to the case M. Ajmal Khan v. The Election Commission of India, rep. by its Chief Election Commissioner, New Delhi-I & Ors., where the plaintiffs had objected to Muslim women being photographed without purdah in electoral rolls. The court records that in that case, “The argument was that wearing of purdah by Muslim women is one of the principles laid down in Holy Quran and it has to be strictly followed by Muslim women. Therefore, any interference with such religious practice would amount to interfering with the fundamental right of the Muslim women, which is guaranteed under Article 25 of the Constitution of India. The Madras High Court dismissed such writ petition holding that such direction of the Election Commission is not violative of Article 25 of the Constitution.” This decision recognised the purpose of the photographs without purdah were to prevent impersonation and bogus voting.

In light of this Justice Gupta held, “The said judgment though is in the context of elections but the ratio thereof is applicable to the present matters, the education to a school by the State is constitutional mandate to be carried out in a non-discriminatory manner irrespective of caste, sex and religion.”

He holds the students squarely accountable for not attending classes if not permitted to wear hijab. He says, “The State has not denied admission to the students from attending classes. If they choose not to attend classes due to the uniform that has been prescribed, it is a voluntary act of such students and cannot be said to be in violation of Article 29 by the State. It is not a denial of rights by the State but instead a voluntary act of the students. It would thus not amount to denial of right to education if a student, by choice, does not attend the school. A student, thus, cannot claim the right to wear a headscarf to a secular school as a matter of right.”

Fraternity and dignity

Justice Gupta’s judgment examines the idea of fraternity in the context of the GO. He says, “The concept of fraternity and dignity do not stand alone but have to be inferred from the context, circumstances and the purpose sought to be achieved. There is no dispute, as asserted in the written submissions, that the purpose of introducing fraternity as a constitutional value is to invoke horizontal or social sensitivity towards inequalities, in addition to the vertical, or top-down political prescriptions towards inequalities. Fraternity is in fact social sensitivity. The students herein are in the age group of 15 to 18 years. The seed of education should germinate equally amongst all students. Therefore, the Preambular goal of justice, liberty, equality or fraternity would be better served by removing any religious differences, inequalities and treating students alike before they attain the age of adulthood.”

He goes on to say that the word Bandhutva (meaning brotherhood) is the Hindi word for ‘fraternity’. He further says, “Brotherhood is amongst all the citizens of the Country and not of a particular community. Fraternity is the antithesis of a segmented society wherein all humans are treated equally and their innate genius is allowed an outlet by exposing them to equal opportunities.” Justice Gupta also observes, “Fraternity is a noble goal but cannot be seen from the prism of one community alone. It is a goal for all citizens of the country irrespective of caste, creed, sex and religion.”

According to Justice Gupta, “The concept of fraternity will stand fragmented as the apparent distinction of some of the students wearing headscarf would not form a homogenous group of students in a school where education is to be imparted homogeneously and equally, irrespective of any religious identification mark. The Constitutional goal of fraternity would be defeated if the students are permitted to carry their apparent religious symbols with them to the classroom.”

He thus appears to hold the concept of fraternity to be intertwined with those of homogeneity and uniformity, which appears to leave little or no space for diversity and free expression.

Uniformity vs homogeneity

Justice Gupta’s judgment also delves into the debate over uniform. He observes, “All students need to act and follow the discipline of the school. Out of the many steps required to ensure uniformity while imparting education, one of them is to wear the uniform dress without any addition or subtraction to the same. Any modification to the uniform would cease to be the uniform, defeating the very purpose of prescribing under Rule 11 and as mandated by the College Development Committee.”

He further refers to provisions in the GO pertaining to wearing of other religious items or jewellery, and says, “The Government Order dated 5.2.2022 contemplates that the prescribed uniform should be followed. It necessarily excludes all religious symbols visible to naked eye. The argument that the students wear Rudraksha or a Cross is mentioned only to deal with an argument so raised. Anything worn by the students under his/her shirt cannot be said to be objectionable in terms of the Government Order issued.”

Justice Gupta further notes, “The object of the Government Order was to ensure that there is parity amongst the students in terms of uniform. It was only to promote uniformity and encourage a secular environment in the schools. This is in tune with the right guaranteed under Article 14 of the Constitution. Hence, restrictions on freedom of religion and conscience have to be read conjointly along with other provisions of Part III as laid down under the restrictions of Article 25(1).”

The judgment goes on to say, “The students have been given a uniform platform to grow and take quantum leap in their further pursuits. The homogeneity amongst the students in the matter of uniform would prepare them to grow without any distinction on the basis of religious symbols, if not worn during the classroom studies in a Pre-University College.”

According to Justice Gupta, “The uniform prescribed would lose its meaning if the student is permitted to add or subtract any part of uniform.” He asks, “If, the norms of the uniform in the school are permitted to be breached, then what kind of discipline is sought to imparted to the students.” He further notes, “The uniform is to assimilate the students without any distinction of rich or poor, irrespective of caste, creed or faith and for the harmonious development of the mental and physical faculties of the students and to cultivate a secular outlook. The wearing of hijab is not permitted only during the school time, therefore, the students can wear it everywhere else except in schools. The wearing of anything other than the uniform is not expected in schools run by the State as a secular institution. In a secular school maintained at the cost of the State, the State is competent to not permit anything other than the uniform.”

However, the judgment appears to disregard the fact that uniformity and homogeneity are two different things, something that the counsel for the plaintiffs have pointed out. If the two ideas are conflated, the entire concept of diversity becomes meaningless. Moreover, the plaintiffs are not opposed to wearing a uniform. They just want to wear a hijab along with it. They have said before that they would be happy to wear it in the same colour as the uniform. Therefore, they are not opposed to either the uniform or the concept of uniformity.

Discipline in the Classroom

Justice Hemant Gupta’s judgement is also keen on discipline within the classroom. The word “discipline” occurs twenty-two times in the judgment. He says also that “disclipline and control” cannot exist without a uniform. This passage is important, in this context: “Discipline is one of the attributes which the students learn in schools. Defiance to rules of the school would in fact be antithesis of discipline which cannot be accepted from the students who are yet to attain adulthood. Therefore, they should grow in an atmosphere of brotherhood and fraternity and not in the environment of rebel or defiance (sic). (paragraph 188)

Justice Gupta’s entire judgment may be read here: 

Related:

It is a matter of choice, nothing more nothing less: Justice Sudhanshu Dhulia in Hijab Ban case

Hijab Ban case: SC wonders if right to dress also makes right to undress a fundamental right

BREAKING: Wearing of Hijab not essential religious practice: Karnataka HC

The post Justice Hemant Gupta’s take on secularism, fraternity and uniformity in the Hijab Ban case appeared first on SabrangIndia.

An Islamic organisation named Samastha Kerala Jem-iyyathul Ulama (SKJU) has challenged in Supreme Court, the Karnataka High Court’s Judgment which upheld the state government’s Order that put a ban on wearing of Hijab by Muslim girls in classrooms.

The High Court held that wearing of Hijab was not an essential religious practice in Islam. On March 24, a request was made by Senior Adv. Devadatt Kamat in the Court of CJI to take up the Petition challenging the Karnataka High Court’s judgment, for urgent hearing. But this was declined.   

Content of the Petition

A Special Leave Petition (SLP) filed through Advocate Zulfikar Ali in the Supreme Court by clerics of the SKJU claims that the High Court relied upon an erroneous interpretation of the Holy Quran, the Hadis and that of the Islamic law.

The Petition mentions the Surah 24 Ayat 31, and Surah 33 Ayat 59, which say that in the Holy Quran it is obligatory for the women to cover their head and neck. The Petition also states that it is the express dictum of Quranic verses and is also included in the teachings of Prophet Mohammed (PBUH) that a woman should cover her head and neck in the presence of males from outside her immediate family. Muslim women use different types of veils across the world to cover their head and neck This garment is distinct from other garments to cover their body. Hijab is one of those veils evolved in modern period which also got a widespread acceptance by virtue of its comfort and modesty.

The Petition further states that the legal theory stated in the Karnataka High Court Judgment, which was binding only to the Karnataka State, will have a large impact throughout the Country. The Petition claims that this Special Leave Petition was filed in the Supreme Court in the larger interest of the Muslim community.

The Petition states that the High Court erred in declaring Hijab to be non-mandatory practice, on a very erroneous reasoning that no penalty is prescribed for not following it. The Petition further states, “As per the law settled by the Supreme Court in catena of Judgments, for a religious practice to pass the ‘essentiality test’ it is not necessary that there must be a penalty or penance attached with it… The High Court is not justified in insisting for a punishment attached with it to get protection of Article 25 for this dress code,” as reported by LiveLaw.

The Petition further contends that according to commandments of Qur’anic verses and Hadis mentioned above, it is the ‘farz’ (duty) of women to cover their head and neck and they are forbidden from exposing their female body otherwise. The violation of farz is haram (forbidden) as per Islamic jurisprudence. Therefore, not allowing a Muslim woman or girl to wear the headscarf is in violation of her right to follow the essential religious practice of her religion as protected under Article 25 of the Constitution. The Petition also contends that the High Court completely relied upon the commentaries given by Abdulla Yusuf Ali in the footnotes of suras to declare hijab as a non-essential practice. These footnotes of Yusuf Ali are his personal opinions which cannot be considered as a source of Islamic law.

The Petition further claims that same coloured headscarf to that of the uniform would not offend the public order of any educational institutions. Enforcing the strict uniform dress code for the students not only fails the test of reasonable restrictions laid by the Supreme Court but also outrages the idea of unity in diversity. Compelling such an absolute uniformity for citizens is seen as the replica of the Nazi ideology.

On March 24, a request was made in the Court of CJI Ramana for urgent listing of the Petitions challenging the said Karnataka Judgment in hijab case. It was urged by Senior Advocate Devadutt Kamat on behalf of Muslim students to take up the matter as their exams were about to start from March 28. CJI Ramana while refusing the request, reportedly said, “Exams have nothing to do with the issue, don’t sensitise the issue.”

The Supreme Court had earlier on March 16, said that the matter will be listed after Holi Vacations, when the Petitioners sought urgent hearing on the grounds of upcoming exams.

Related:

Walkouts, objections, after Karnataka HC verdict on Hijab, but BJP netas hail it
BREAKING: Wearing of Hijab not essential religious practice: Karnataka HC
Karnataka: Two Private Pre-University colleges allow students to wear Hijab

The post Hijab case verdict based on erroneous interpretation of Holy Quran: SKJU appeared first on SabrangIndia.