The Hijab Controversy.

Just as indifference or abdication or surrender is not tolerance, determining/or administering a rule should not be taken to mean discrimination as the recent hijab(face cover popularly known as burqa) controversy is purported to be given a colour in the name of religion or faith. 

If any indifference has been forsaken towards observing the rule in the interest of one and all should it be frowned upon?

 Wearing hijab by students of particular faith in the state run institution, if held contrary to any rule, has not only been frowned upon but now has assumed the proportion of a protest with vehemence.

        Is it only because it was allowed as a normal practice now under check on the basis of some rule or something else lay in its root?

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In order to understand the issue in deeper details I reproduce verbatim the news captioned "Explained: Court Rulings on Hijab" in the bracket below that was published in the Indian Express on 

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("Explained: Court Rulings on Hijab"

                    Indian Express; February 11,2022.

On February 5, the Karnataka government passed an order exercising its powers under Section 133(2) of the Karnataka Education Act, 1983. The provision grants powers to the state to issue directives for government educational institutions to follow. In 2013, under this provision, the state had issued a directive making uniforms compulsory for education institutions. Referring to the 2013 directive, the latest directive specifies that a headscarf is not part of the uniform.

It states that wearing a headscarf is not an essential religious practice for Muslims that can be protected under the Constitution. The order takes refuge in three cases decided by different High Courts to hold that banning the headscarf is not violative of fundamental rights, particularly freedom of religion.

The petitioners, however, have argued that the facts and circumstances of the three cases are different and cannot be applied to the Karnataka case. This means that the High Court will have to first decide whether wearing a hijab is an essential religious practice.

What are these three cases?

The three cases cited in the government order are from the Kerala, Bombay and Madras High Court.

Kerala High Court, 2018:

 In Fathima Thasneem v State of Kerala, a writ petition had been moved by Mohammad Sunir, the father of two minor girls aged 12 and 8. The petitioner challenged the school’s denial of permission to wear full-sleeved shirts and a headscarf as it was against the prescribed dress code. A single-judge Bench of the Kerala High Court ruled in favour of the school which was a Christian Missionary school, a minority educational institution. 

The court said that “collective rights” of the school must be given primacy over individual rights of the students.

In the current case in the Karnataka High Court, senior advocate Devadatt Kamath argued on Thursday that this case cannot be a valid precedent as it refers to a minority education institution as opposed to a government educational institution. Constitutionally, minority educational institutions have greater freedom to regulate their affairs.

Bombay High Court, 2003:

 In Fathema Hussain Sayed v Bharat Education Society, a minor student had challenged the school’s prescribed dress code that did not allow the wearing of a headscarf. Since the minor girl attended an all-girls school, the Bombay High Court ruled against her, despite the argument that wearing a headscarf is an essential religious practice which must be protected under the Constitution. The High Court referred to relevant verses from the Quran and held that the book did not prescribe wearing of a headscarf before other women.

“A girl student not wearing the headscarf or head covering studying in the exclusive girls section cannot be said to in any manner acting inconsistent with the aforesaid verse 31 or violating any injunction provided in Holy Quran,” the court held.

In the Karnataka case, the petitioners have argued that even though the state government had cited this Bombay HC case to buttress the point that courts have refrained from interfering with prescribed dress codes for educational institutions, the current case actually supports the cause of the petitioners and not the state. Since the decision is in “the context of Muslim girls studying in an exclusively girls sections”, the counsel for the petitioners argued that as a corollary, headscarves must be allowed in a co-education establishment.

Madras High Court, 2004:

 Sir M Venkata Subba Rao, Matriculation Higher Secondary School Staff Assn v Sir M Venkata Subba Rao, Matriculation Higher Secondary School was a case challenging the dress code imposed by the management of a school on teachers. Although the Madras High Court held that the imposition of the dress code had no statutory backing, it refused to interfere on the grounds that the teachers “should set high standards of discipline and should be a role model for the students”.

This ruling has no discussion on either wearing hijab or rights under Article 25 of the Constitution which guarantees religious freedom.

What are the other grounds on which the Karnataka government order has been challenged?

The petitioners have argued that wearing a hijab is an expression protected under Article 19(1)(a) of the Constitution which guarantees the right to freedom of speech and expression. Constitutionally, a right under Article 19(1)(a) can only be limited to the “reasonable restrictions” mentioned in Article 19(2). This includes sovereignty and integrity of India, friendly relations with foreign states, public order, decency or morality or in relation to contempt of courts, defamation or incitement to an offence.

The petitioners have argued that a student silently wearing a hijab/headscarf and attending class cannot in any manner be said to be a practice that disturbs “public order” and is only a profession of their faith.

The petitioners have also argued that the ban on headscarves violates the fundamental right to equality since other religious markers, such as a turban worn by a Sikh, are not explicitly prohibited. Senior advocate Sanjay Hedge, appearing for the petitioners, also argued that the rules prescribed wearing of a dupatta for women and the state cannot dictate the manner of wearing that dupatta if a student wishes to cover her head with it.)

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           So it assumes as a valid question that if a prevailing practice continues for long in the face of it being contrary to rule, does it divest the State of its power to correct the same so that it becomes in conformity with the rule? 

Or should the rule itself be changed for accommodating the religious aspirations of the minorities to enjoy what is already available to them in the institutions run by them to their choice to the extent guaranteed by the Constitution? 

Surely, it would have been the blatant case of discrimination if the authority of the State run institution had forced the students of certain faith to wear their hijab.

Similarly,it would have been the mockery of rule if the authority had allowed students of other faiths to wear the dress connoting their religions. 

Likewise,it would have been still more blatant;rather conflaggerant case of selective discrimination had the State,on ground of religion "only" proscribed wearing of burqa or niqab or hijab in public life outside the formal institutions run by rules and regulations.

This would have been Intolerance on part of the State to say the least. In that case the same would have meant to break away from the Constitution and its cherished ideals.

We are aware that serving while wearing attire or articles of religious connotation during duty hours under police or army or administration etc. is not only in flaggerance of service rules but is a deprecable practice also if resorted to by some unless it happened to be a declared essential practice of wearing of a turban by a Sikh so serving. Do we want to see burqa or hijab an essential religious practice to be declared by the court so that the practice in question can overrule the rule of any Institutions? The choice is ours.

Should educational institutions, whether State-Run or Private-Run, be exempted from such restrictions by way of any order or rule? To what extent such laissez faire or laissez aller will have the potential to affect public orders etc.?

It should be a case in point to be discussed on merit and of course without pride or prejudice. 

But instead we are wasting time and energy by being indulgent in finding which religious attire is essential and which one is frivolous in public life to wear or sport. 

We forget that the question relates to denial of choice not outside the formal institution but within it. 

They want this choice to be extended even in institution so that they can, with hijab, breathe the air of freedom there also.

But the entire discussion is veered towards intolerance for reasons not beyond comprehension.

Let those who want to make every question constitutionally determined lay their protest to rest till we get a verdict on the issue.

Education should enable us to discuss on the basis of "reasons".

Discussion divorced from reasons is reduced to ruckus as is the case in hand. 

My personal view leads me to hold that rational behind any law or rule must be to serve larger interests. Their object should be to protect/dismiss such things worthy of being protected/dismissed. 

Notwithstanding so long as you happen to be the member of an Institution you are duty bound to follow its rules framed legally to run the same. If dissatisfied with its rule or regulation; the choice of leaving the institution must be unrestricted.

 The row, for now, appears to be resonating without reasons. This brouhaha is at best bereft of the base if not brooded over in the light of bipartisan politics that later has become more than before. 

It should be a matter of solace to those (definitely not me and many like me) who see now America and even Pakistan sermonising us to be secular.

R.R.Prabhakar.

12.02.2022.