Legally Speaking: What To Make Of The Karnataka Hijab Row

by Ujjawal Mishra - Sep 22, 2022 06:49 PM +05:30 IST
Legally Speaking: What To Make Of The Karnataka Hijab RowKarnataka Hijab Row

The Supreme Court today reserved its verdict in the highly contentious Karnataka hijab ban issue.

Timeline: The conflict arose around December 2021 in Udupi, Karnataka.

  • Some students decided to demand the right to sport the hijab inside the classroom.

  • Soon, it snowballed into a matter of public order, whereby classes were disrupted by those in ‘solidarity’ with the hijab-donning students.

  • This led to Hindu students donning saffron shawls also demanding similar rights.

  • Chaos and disorder followed and normal school activity was disrupted.

  • The Karnataka government, by an order dated 5 February 2022, banned wearing clothes that disturb equality, integrity, and public order in schools and colleges.

  • The petitioners then demanded justice from the Karnataka HC, claiming that hijab was an ‘essential religious practice’.

  • On 15 March, the High Court dismissed petitions, saying it is not a part of essential religious practice in the Islamic faith.

  • Several pleas were then filed in the apex court challenging the HC verdict.

Arguments in favour of hijab have ranged from it being essential religious practice to the ban amounting to a violation of fundamental rights.

  • One of the advocates called the HC's interpretation, from an Islamic and religious perspective, a "wrong assessment."

  • Advocate Shoeb Alam argued that wearing hijab is a matter of one's dignity, privacy, and autonomy.

  • Alam said that the impact of the government order is: "I will give you education, give me your right to privacy, surrender it. Can the state do it?"

  • Senior advocate Kapil Sibal asked if a woman's right to wear a hijab is extinguished when she enters a school.

  • He argued that hijab is a part of the persona and also a part of cultural tradition.

Minority card: Senior advocate Colin Gonsalves said that once the practice has been established, it is covered by Article 25 of the Constitution.

  • He asked for the assessment of whether the practice of wearing hijab is essential to religion.

  • "The judgement read as a whole is basically from a majoritarian perspective point of view. It does not conform to the kind of constitutional independence that a judgement ought to have," he said.

  • Gonsalves argued that constitutional morality, in the context of minority rights, is the ability to see an issue through the eyes of the minority.

  • "It has to be cultivated. A person from the majority may not get the answer quickly, may not understand the intensity of feelings quickly," he said.

Arguments against hijab: Solicitor General Tushar Mehta, appearing for Karnataka, told the court that the agitation was started by the Popular Front of India (PFI).

  • The PFI is widely viewed as a hardline Muslim organisation and has been blamed for several incidents of communal violence and radicalising Muslim youth.

  • "This is not a spontaneous act of few individual children... They were a part of a larger conspiracy and the children were acting as advised," Mehta told the bench.

  • He said the state had directed educational institutions and not students about uniforms.

  • "That is the purpose of uniform. It is for uniformity. It is for equality among all students," he said.

Religious practice? Mehta asked how the hijab is an essential practice when people in the country where the religion was born do not essentially follow it.

  • Bringing up the ongoing anti-hijab protests in Iran, Mehta said, "Where nations or countries are Islamic countries, women are not wearing hijab. They are fighting against hijab."

  • Karnataka's Advocate General, Prabhuling K Navadgi, told the bench that countries like France have prohibited the hijab and women there have not become any less Islamic.

  • Navadgi said unless it is shown that wearing the hijab is compulsory and an essential religious practice, one cannot get protection under Article 25 of the Constitution.

  • Senior advocate R Venkataramani, who appeared for a teacher, said they want a free and unhindered atmosphere where teachers can communicate with students without a wall of separation.

The Afghanistan example: Whether it was when the Taliban first came to power in 1996 or, recently in 2021, one of the first orders they gave was that women must wear the chadari as hijab.

  • Women who went against such diktats were subjected to violence and sometimes even killed.

  • This is because for Islamic fundamentalists, Sharia orders women to cover themselves from head to toe.

Bottom line: Implications of a pro-hijab verdict would be severe and counter-productive in India, where women are breaking glass ceilings daily.

  • The SC's verdict will be followed closely by many, as the issue has multiple layers.

  • The case covers issues ranging from women's personal choice, individual liberty of citizens, the power of Islamic fundamentalists in Indian society, Islamic religious practice, and the judiciary's role as an impartial arbiter.

Ujjawal Mishra is a Staff Writer at Swarajya. He tweets @Ujjawal1Mishra.
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