What is shocking about Friday’s interim order in the matter of the hijab ban by a three-judge bench of the Karnataka High Court is that it did not actually surprise anyone. The court said that until it delivers its final verdict, students should not wear religious clothing to class if their college has a prescribed uniform.
Given the record of the judiciary over the past few years, justice for the minorities and weaker sections of society (such as migrant labourers) has become a privilege and not their right.
After the Babri Masjid land judgement and the refusal of the Supreme Court to hear the petitions challenging the Centre’s decision to abolish statehood for Jammu and Kashmir, it requires extraordinary constitutional will and an irrepressible trust in the idea of justice for the minorities and the oppressed to come to court.
The courts need to be grateful to the Muslims who still knock at its doors despite having repeatedly suffered humiliation.
With its interim order, the High Court has practically suspended the rights of the Muslim women students who have challenged the ban on hijab and denial of entry to their educational institutions by invoking the freedom of religion and conscience guaranteed under Article 25 of the Indian Constitution.
“Pending consideration of all these petitions, we restrain all the students regardless of their religion or faith from wearing saffron shawls and connected matters scarfs, hijab, religious flags or the like within the classroom,” said the three-judge bench comprising Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi.
A free pass to vandalism
The court rejected the petitioners’ plea for interim relief and declined to direct the state to allow them to wear the hijab till the matter is decided. Why did the court think it right to ask the students to forego their fundamental rights, even if temporarily? It did not think it necessary to explain its reasoning.
The order has dealt a grievous blow to the idea of justice in many ways. It has given a free pass to vandalism by ignoring the organised manner in which these events unfolded. It has validated a false equivalence between the rights of those who have only recently started donning saffron scarves and turbans to intimidate women students who have been wearing the hijab as part of an age-old convention.
The court has given a free pass to the state’s Bharatiya Janata Party government, which has failed in its duty to protect the hijab-wearing students and quell the violence.
Indirectly, it has put the onus of restoring peace on Muslims while allowing the state to go scot-free.
The interim order implies that a section of society should accept the suspension of its fundamental rights because the state is unwilling to respect and protect it. What is most important in the eyes of the court is the commonsensical requirement to restore peace and tranquility.
The court did not ask a simple question: how is it that the mighty state cannot restrain thuggish elements from mobilising mobs of youth, distributing saffron scarves and headgear to them and using them to threaten hijab-wearing Muslim students and the educational institutions they attend? It is this violence that broke peace. Peace was not disturbed by the hijab.
We need to call the bluff of those who have started lumping hijab and saffron together. Now the court, with its order, has put a legal stamp on this perception.
An old convention
The advocate general representing the state knew what he was doing when he said that the state could not discriminate between the new saffron scarf wearers and the long-time hijab-wearing students. He knew that saffron scarves and headgear are not a part of the daily tradition of Hindus whereas the hijab, like it or not, is a very old convention in the Muslim community.
We can see – but the lordships cannot – that the Hindus to have added saffron only as a retort to hijab. It does not serve any religious purpose but has been deployed instead to create a law-and-order problem that has been used an excuse to prevent some Muslim students from wearing the hijab. Saffron garb does not satisfy a spiritual need but has been used to demonstrate dominance over Muslims.
The courts also made the right of education of the hijab wearing Muslim students conditional. As one of their lawyers said, it has asked them to choose between food and water. In a supposedly religious country like India, it has asked Muslims to suspend practicing their faith for the larger societal good of peace – a peace that had not been broken by them but by the violent mobs assembled to intimidate them.
These are questions the court cannot disregard but it has done exactly that. It did not accept the “smaller argument” route suggested by advocate Sanjay Hegde and instead preferred to wade into the “Essential Practices” argument: what constitutes an essential practice of the faith? Who decides this and how? By using this argument, a religious community can be deprived of its convention.
For instance, if the juridical view is that a mosque is not an essential part of Islam, it could be used to demolish mosques. Tomorrow, a skull cap or kippa could be made illegal since they are not essential to Islam or Judaism.
Instead , as lawyer Gautam Bhatia has suggested the issue to be considered is if the belief is sincerely held; irrespective of its motivation and also the question why this individual choice cannot be accommodated, how it creates inequality between students and how it vitiates the educational atmosphere.
The court needs to assure itself whether the belief (in this case of wearing of the hijab) is genuinely held or not. If there is a competing group, it could also find out whether its claim has been made only to dispute the belief of the original group.
In the Karnataka dispute, we know which group is genuine. It is clear that the competing group’s compliance with the dress code does not subject them to disadvantage while the ban on hijab does compromise the belief of Muslim students. As
in the case of Sarika, a Sikh student in the UK whose right to wear kada was upheld in 2008, a Kenyan court in 2015 said that policies like a uniform dress code, while appearing to be neutral can actually be indirectly discriminatory, M Jannani notes in this article. One cannot ignore that.
The Supreme Court must not watch this blatant legal suppression of the fundamental rights of a religious group that is facing daily assault from the ruling dispensation and autonomous violent groups. One of the judges while speaking outside the court had underlined the crucial and extraordinary role that the judiciary has to play in majoritarian times. Are we not already there?
Apoorvanand teaches Hindi in Delhi University.