The sensitive issue of wearing Hijab by Muslim girl students in schools and colleges of Karnataka will now be heard by a larger bench of Supreme Court, consisting of not less than three judges. This was necessary after a two-judge bench of the apex court gave a split verdict on Thursday. At the same time, the bench said the Karnataka High Court’s February 5 order upholding the state government‘s ban on wearing of hijab in schools and colleges will remain.
Justice Hemant Gupta upheld the ban on hijab, while Justice Sudhanshu Dhulia quashed the state government’s ban saying that hijab is purely an issue of “faith-driven choice” by Muslim girl students, that cannot be violated.
After delivering diametrically opposite judgements, the bench said, “In view of the divergent views expressed by the Bench, the matter be placed before the Chief Justice of India for constitution of an appropriate bench.”
Justice Hemant Gupta had framed 11 questions and had carried out a detailed analysis of the arguments from both sides in his 140-page judgement and negated the Muslim side’s pro-hijab arguments. On the other hand, Justice Dhulia in his 76-page judgement, said, “Concept of essential religious practices” is not the issue. “It is ultimately a matter of choice, nothing more, nothing less.” He said, asking a pre-university schoolgirl to take off her hijab at the school gate is an “invasion” of her privacy.
In his judgement, Justice Hemant Gupta said the answers to all the 11 questions that he had framed go against the appellants. These include the respective scope and interplay of right to equality, freedom of expression, privacy and dignity, and right to religious practices. “Enforcement of uniforms does not violate the right to freedom of expression. Rather it reinforces right to equality”, Justice Gupta said.
In his judgement, he said, “The object was to ensure that there is parity among the students in terms of uniforms. It was only to promote the 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 (Fundamental Rights) as laid down under the restrictions of Article 25(1).”
Justice Gupta said, no student is going to perform a religious duty in school and hence the state has the power to restrict wearing of hijab within a secular school premises. “The religious belief cannot be carried to a secular school maintained out of state funds”, he said. “The enforcement of uniforms does not violate the right to freedom of expression, it rather reinforces the right to equality under Article 1”, he added.
On the Muslim appellants’ arguments that allowing Muslim girls to wear hijab would achieve the constitutional goal of fraternity, Justice Gupta remarked: “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”.
In his diametrically opposite judgement, Justice Dhulia said: “All the petitioners want is to wear a hijab! Is it too much to ask in a democracy? How is it against public order, morality or health? Or even decency or against any provision of Part III of the Constitution?…It does not appeal to my logic or reason as to how a girl child who is wearing a hijab in a classroom is a public order problem or even a law and order problem”.
In his judgement, Justice Dhulia said, court are not the forums for deciding theological issues, whether hijab is essential religious practice or not. “By asking the girls to take off their hijab before they enter the school gates, is first an invasion of their privacy, then it is an attack on their dignity, and then ultimately it is a denial to them of secular education. These are clearly violative of Article 19(1)(a), article 21 and Article 25(1) of the Constitution of India.”
He said the Karnataka High Court misdirected itself in getting unnecessarily entangled in determining essentiality of hijab to Islam by referring to Quranic verses. He said, the High Court should have tested the government circular on the touchstone of right to freedom of choice guaranteed under the Constitution.
Twenty six petitions were filed challenging the Karnataka High Court’s March 15 verdict upholding the state government circular prohibiting wearing of hijab in schools and colleges.
Soon after the apex court announced its split verdict, Muslim leaders including AIMIM chief Asaduddin Owaisi, welcomed Justice Dhulia’s verdict and said that the Karnataka High Court had given a wrong decision by incorrectly interpreting the Holy Quran and Hadees.
The controversy over wearing of Hijab began in July last year when a government-run pre-university college in Udupi district prohibited wearing of hijab by students. This was followed by boycott of college by six Muslim girl students. Protests took place in several parts of the district.
When this controversy resulted in tension in several districts, Karnataka government on February 5 made dress code compulsory in all government schools and colleges. In effect, it prohibited wearing of hijab in schools and colleges. The order was challenged in High Court, which upheld the government circular on March 15. After Thursday’s split verdict from the apex court, Karnataka Education Minister B. C. Nagesh said that the ban on hijab in classrooms will continue.
Samajwadi Party MP Shafiqur Rehman Barq said, if wearing of hijab is banned, it will lead to rakish behaviour among youths. “At least one judge is in favour of hijab. We want wearing of hijab to continue, otherwise it will have a bad effect on society”, the MP said. In other words, Barq’s remarks amount to insulting Muslim girls and women.
Congress leader Arif Masood raised question about Justice Hemant Gupta and said, “the judge did not accept the arguments of Muslims. Actually, this matter should have been resolved in schools and colleges, but due to political interference, the controversy arose.” NCP leader Majid Memon, himself a lawyer, said, “no right is absolute. There are limitations. This also applies to wearing of clothes.”
Muslim scholar from Lucknow Maualana Khalid Rashid Firangi Mahali said, “The issue is not about Islam. It is about the Constitution, which has given Muslim women the right to wear hijab. It is a matter of choice. There should be no ban on hijab.” Maulana Siraj Khan from Mumbai said, “Muslim girl students take off their hijab in college common room, yet people have objections. This government is viewing every issue from the prism of religion.”
Muslim Women’s Personal Law Board chief Shaista Amber said, “There is no emphasis on wearing of hijab on the Holy Quran. More emphasis has been given on ink and pen in Quran. Muslims should stop making hijab an issue and concentrate more on education.”
India TV reporters spoke to Muslim girls in Delhi, Mumbai, Kolkata, Lucknow, Bhopal, Jaipur and Aligarh. Most of the girls said, hijab is not compulsory, it is a matter of personal choice. They said, Islam gives full freedom to girls, and any such ban in the name of Islam is unfair. Muslim girl students in Aligarh Muslim University said, hijab should not come in the way of education. Girls wearing burqa and hijab in AMU campus said, “This is our personal choice. Those who do not want to wear, they should not be forced.”
It is not surprising that the two hon’ble judges of Supreme Court could not reach unanimity on the issue of hijab. Even top Muslim scholars have divergent views on this issue. People across the world are now divided into two camps on the issue of hijab. In the Islamic Republic of Iran, women have come out on the streets opposing wearing of hijab. As far as India is concerned, most of the Muslim girls are saying, it is a matter of personal choice and not compulsion. There is nothing wrong in this view. But leaders like Owaisi and Shafiqur Rahman Barq are projecting as if a nationwide ban on wearing hijab has been clamped. This is nothing but a white lie.
Only in Karnataka, the state government has asked all state-run schools and colleges to follow the dress code. This decision is enforceable only inside the education campus. There is no ban on girl going to college wearing hijab, but once they enter school or college, wearing of hijab has been prohibited. There is nothing wrong in this order. In India, whether in schools or colleges, or in police or armed forces, unform dress code is followed. Everybody has to follow that code. Inside the campus, dress code is a must, but outside the campus, anybody is free to wear whatever he or she likes.
We should learn from the mass movement by women in Iran, where scores of women have so far died in police firing while staging protests. Demonstrators are being thrown into jails. It all started when, on September 13, a 22-year-old woman Mahsa Amini was beaten to death by Iranian morality police for violating the strict rules requiring women to cover their head with hijab. Policemen hit her head with a baton, and she collapsed to death inside the police station.
In solidarity, Iranian women staged protests on streets in several cities and ripped off their hijab in public. Many women publicly cut off their hair and burnt hijab. They chanted slogans like “Women, life, freedom”, “Death to the dictator”. Even schoolgirls staged protests in playgrounds and streets. Men and teenagers also joined the women in protests. Iran Human Rights, a Norway-based group, has said, at least 201 people, including 23 children, have been killed by security forces.
On one hand, the brave women of Iran are fighting against the draconian Islamic rules requiring all women to cover their heads with hijab in public, while on the other hand, self-styled Muslim leaders in India are demanding that Muslim girls must wear hijab in schools and colleges. There is a clear dichotomy here. It is time for the Muslim elders in India to decide whether wearing of hijab should be made a personal choice or a religious compulsion.