Karnataka High Court upheld the ban of hijab in educational institutions of Karnataka. Prior to announcing the judgement, the High Court heard all relevant petitions for 11 days, following which the Court announced its verdict on March 15, 2022. In rendering the verdict, the High Court formulated a few questions and had answered them. The questions were as follows:
- Whether wearing hijab is an essential religious practise under Islam?
- Whether wearing hijab is essential for Freedom of Expression and the Right to Privacy?
- Was the Government order of February 5 issued without application of mind and manifestly arbitrary?
In providing answers to these questions, the Court found wearing of hijab by Muslim women was not part of essential religious practices under Islam and prescription of school uniform was only a reasonable restriction which students could not object against. The Court also endorsed that the Government had the power to issue Government orders.
Bharat is home to people subscribing to various faiths who didn't call for the partition of undivided Bharat. In spite of that, social issues of post-partition India being adjudicated based on Islamic texts amount to depriving people of other faiths combined with their legitimate prepotency
Addressing the existence of separate personal law for Muslims, the Court took refuge in Islamic religious texts to declare in favour of not distorting institutional uniforms by wearing hijab. Referring to religious texts was perhaps expected to avoid the verdict's unacceptability and increase sustainability thereof. However, the outcome of the verdict was contrary to such expectations. The presence of separate Muslim personal law provided moral strength to a section of Islamists to declare the verdict unacceptable and even threaten the judges with unfavourable consequences. This appeared to have indicated the core spirit of the hijab-demanding-lobby, not duly religious but political. They appear to be wielding the political 'power' of separate personal law. Karnataka High Court seemed to have assumed stopping the hijab based on Constitution's secular guidelines would not gain much acceptance. Post-verdict repercussions, however, made us believe otherwise. Post-verdict repercussions indicated the hijab issue demanded attention only from the secular angle of social life and not from the religious one. For example, Indian Supreme Court hardly hesitated to order the Sabarimala verdict against the faith of Ayyappa devotees based on secular provisions like “gender equality”. Probability of such disparity in judicial approach for two different communities not appearing as discrimination is less though the real reason behind such apparent discrimination in the absence of separate civil law for Hindus like those of Muslims.
Need to Uphold constitutional Morality
However, until a Uniform Civil Code comes into existence, the judiciary, as the guardian of the Constitution, cannot avoid due moral responsibility to adjudicate issues predominantly from secular perspectives as ours is a secular State. This is to encourage people to engage in smaller peripheries of communal personal law and to uphold the constitutional morality of a secular country. More so because Bharat is the only exclusive country in the world that was partitioned based on religion. The Islamic part had already negotiated sovereignty as Pakistan and later as Bangladesh.
To ensure public security, Sikhs are not allowed to keep kripaan in all places despite being a religious requirement. Hijab needs to draw attention to similar dimensions in the era of internet technologies. Muslim men develop a bluish-black religio-cultural marker on the forehead as a result of repeated namaaz. Tilak/Sindoor, etc., are comparable to such marks and not with hijab
While Karnataka High Court upheld banning the hijab in concerned educational institutions based on Islamic religious texts, the question remained whether this was the maxima of justice our society could expect from Indian courts. While the court’s verdict was based on consultation of Islamic texts to confirm whether the hijab was intrinsic to Islam or not, the question remained whether this verdict could create the desired perception of justice in post-Partition India. Had the hijab been declared a quintessential mandate of Islam by Islamic religious texts, the Judiciary of secular India would have been compelled to uphold the demand of the hijab. However, in spite of the bitter truth being in existence that India had already been partitioned on demand of Islamists and the country is still living the horror thereof, judgement based on copybook Islamism doesn't appear justice in post-Partition India.
Y-category security for HC judges
Karnataka Chief Minister Basavaraj Bommai has announced Y-category security to the three judges of Karnataka High Court who gave the verdict on the Hijab controversy including Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and JM Khazi. This came after Chief Justice Awasthi was targeted with a death threat over a Whatsapp video which was received by advocate Umapathi S. On March 20, while talking to the press, CM Bommai announced giving security to the judges to ensure their safety after the Hijab verdict. He said, “We’ve decided to give ‘Y’ category security to all three judges who gave the Hijab verdict. I have instructed DG and IG to probe the complaint filed in Vidhanasoudha PS thoroughly in which some people gave life threats to the judges.”
Notably, advocate Umapathi S. had received a video on her WhatsApp number purportedly using vulgar language and threatening to kill Chief Justice Awasthi after the bench announced the Hijab verdict. Referring to a murder of Jharkhand judge who was killed while he was on his morning walk, the accused in the video further stated that he knew where the Karnataka High Court Chief Justice goes for a walk in the morning.
Soon, Advocate Sudha Katwa filed a complaint with Bengaluru’s Vidhana Soudha Police. After a brief investigation, the police arrested two people belonging to the Tamil Nadu Towheed Jamaat (TNTJ) from Tamil Nadu on the evening of March 19. The Police took custody of Kovai Rahamathulla from Tirunelveli and S Jamal Mohammad Usmani from Thanjavur and the duo has been arrested after many complaints were filed against the accused in Karnataka and in the neighbouring state of Tamil Nadu. n
If increasing aggression of radical Islamists within the subcontinent is taken into account with due weightage, then the secular approach in adjudicating similar civil issues also appears unavoidable. If India still has to refer to Islamic texts for adjudicating any civil litigation between the Muslim community and the secular State, viewing it as a failure of partition and unreasonable weakness of the Indian Judiciary doesn't appear devoid of legitimacy.
Arguments may be raised that since all Muslims didn't leave for Pakistan, those who stayed back had the right to religion as per Article 25 of the Constitution of India. Such an argument is tenable up to the extent that though all Muslims of India were legitimately destined to shift to Pakistan as it was politically earmarked for Muslims of undivided India, all Muslims didn't leave in practice, and post-Partition, India became liberal enough to respect their choice of staying back. It was acceptance of their choice and not their religion. Who else other than the judiciary could make it duly explicit? It seems necessary for those who stayed back to presume that they upheld their national identity over and above the religious one to choose India as their homeland over Pakistan. Anything contrary to such presumption becomes demeaning for Pakistan as the Islamic identities of Muslims of the Indian subcontinent are undoubtedly nurtured better by the Islamic State of Pakistan than present Bharat. Can Islamic identity be better protected under a secular, i.e. non-religious, i.e. non-Islamic administration (Bharat), than in an Islamic country (Pakistan)? Certainly not. Any disagreement to such presumption would legitimately amount to defaming and demeaning Pakistan, indicating failure of Partition necessitating reunification of Bharat. Hence, it may be presumed that the Muslims who stayed back in India didn't stay back for better protection of their religious identities but for a better scope of human living.
Keeping that in mind, the Indian judiciary needs to assume the power to adjudicate all matters related to Islamists (except in cases where both plaintiff and defendant are Muslims) exclusively from a secular perspective. The Constitution of India has empowered the Judiciary with such secular provisions as the Freedom to religion as per Article 25 is no absolute freedom but subject to Public Order, Morality and Health by the Constitutional prescriptions. In spite of that, while the Judiciary consulted Islamic texts in deciding for the hijab verdict, such consultation itself might appear demoralising to the self-conscious section of post-partition Indian society & might leave them with a feeling of deprivation and insecurity.
What type of deprivation?
As Partition based on religion mathematically necessitated present Bharat to be culturally non-Islamic in entirety, the relevance of Islamic texts in deciding social issues like hijab in present Bharat amounted to giving undue importance to Islamism with respect to all other religious faiths and the preponderant Dharma of Bharat.
Bharat is home to people subscribing to various faiths who didn't call for the Partition of undivided Bharat. In spite of that, social issues of post-Partition India being adjudicated based on Islamic texts amount to depriving people of other faiths combined with their legitimate prepotency. Arguments may appear that as the Constitution of India prescribes equality of all before the law as per Article 14, the presumption of prepotency of any faith would be unconstitutional. Against such arguments, if any, judiciary is best equipped to explain that as ensuring equality of all does not need to preclude idiosyncratic traits of individual communities, moral prepotency of all other faiths combined in post-partition India over Islamic faith does not, hence, defy or outdo Constitutional prescription under Article 14.
The Constitution of India has nowhere prescribed to take history and antecedents of communities into consideration in adjudicating any litigation pertaining to Indian society. The Constitution has not prescribed not to use common sense for any such cause. Hence, to make sure social justice is delivered as promised by the people of India in the preamble of the Constitution, all litigations between Islamists and the secular State of India are warranted to be based solely on secular parameters (and not on religious texts).
The argument of the hijab being exclusively an Islamists' issue doesn't seem tenable due to reasonable cause. It can potentially affect women of all faiths as pro-hijab arguments also included hypotheses like hijab was meant to protect women from rape and molestation, implying lack of hijab might make women vulnerable to rape attacks. It gets validated by the Court of Law; such a theory might necessitate the imposition of hijab upon women of all other faiths in due course of time to protect them from rape and molestation. Thus, it seems tenable to suspect that proactive obstinacy to wear hijab defying school rules might also be a dimension of Islamic aggression upon Indian society as a whole as the legitimacy of hijab would amount to imply legitimacy of rape and molestation of non-Muslim, non-hijabi women. The world knows these are two of the prime ammunition used by the Islamists to intimidate others. Moreover, in the era when the Government of India is talking about women empowerment and women-led-empowerment, the hijab will be a huge moral and physical setback for womanhood itself.
As hijab, burqa objectifies women as nothing but sex objects, and their legitimacy would be a moral and political setback for Indian society as a whole because Bharat from time immemorial never had generalised women as sex objects. If Islam does it, it is antithetical to Indian culture. As Indian Muslims had already chosen their Indian identity over the religious one during partition, they were required to walk out of hijab wherever it was not allowed by the administration. Rigid demand for hijab by Islamists gives rise to apprehensions and insecurity to the soul of Bharat.
PDP chief Mehbooba Mufti said in Srinagar on March 15, “On one side, we make big claims on women’s rights and their empowerment while on another, we don't even give them the right to wear whatever they want; this right shouldn't be with the Courts". While the choice of attire is indeed the individual's prerogative and should not ideally come under the jurisdiction of the Court, it doesn't remain a mere choice if a religious tag is pasted to it. Did Mehbooba Mufti too indirectly advise Muslim society not to bring in religion in such aspects?
Asaduddin Owaisi, drawing an inane comparison between hijab and Sindoor/Tilak, etc., expressed disagreement with Karnataka High Court's verdict, conveniently overlooking the hijab as a piece of cloth additional to the uniform which tilak/sindoor/mangalsutra /conch-bangles etc. are not. Any additional pieces of clothes cannot be allowed along with the uniform as that might end up leaving the uniform redundant. If children from various backgrounds started adding up numerous varieties of additional clothes to the uniform in the name of pluralism, discipline would cease to exist, which is an indispensable prerequisite for learning together in Institutions.
Most importantly, in the era of internet technologies, attire like hijab may be looked upon as a potential security threat and a cheating-enabler in the examination hall. As the hijab comprehensively covers the head, ears and throat up to the upper part of the chest, a wireless-Bluetooth or a similar chip device (widely available) may at ease be placed in the ear to facilitate the adoption of unfair means in competitive class rooms. Hijab, thus, may inspire children to indulge in criminal manipulations as the attire appears resourceful to facilitate such acts. Hidden cameras may be placed within numerous folds of the hijab. In fact, there is hardly any dearth of video evidence in the public domain demonstrating criminal misuse of attires like hijab, burqa etc.
In sync with Bharatiya civilisation
In relation to this, no comparison of hijab seems justified with Sikhs' turbans as turban covers only the head and not the ears. In spite of that, Sikhs are also required to abide by all regulations related to public life, e.g. wearing the helmet during biking and were given no special relief even from the Supreme Court of India. Moreover, to ensure public security, Sikhs are not allowed to keep kripaan in all places despite being a religious requirement. Hijab, too needs to draw attention to similar dimensions in the era of internet technologies. Muslim men develop a bluish-black religio-cultural marker on the forehead as a result of repeated namaaz. Tilak/Sindoor etc., are comparable to such marks and not with hijab.
The Court's verdict was based on consultation of Islamic texts to confirm whether the hijab was intrinsic to Islam or not, the question remained whether this verdict could create the desired perception of justice in post-partition India
While Asaduddin Owaisi also accused hijab ban as a violation of Article 15, he appeared to have overlooked the fact that allowing Muslim girls to carry a distinctive feature like hijab would rather be an exhibition of favouritism, i.e. positive discrimination towards Muslim girls. This, too, would violate Article 15 for all other girls who were non-Muslims. In brevity, it is wise on part of for India to move in prophylactic mode regarding Islamic traits of expression, keeping in mind the bitter truth of Partition and looking at the history, antecedents and recent upsurge of radical Islamists in the subcontinent. India does not seem to be the most suitable place for women who feel most empowered in a hijab or burqa and think wearing such attires is their liberty. Pakistan is already created, breaking away from undivided India for people of such psyche. While politicians who treat common Muslims as mere vote banks might instigate radical organisations like PFI by making misleading comments, countless Indian Muslims would surely have no problems going with the Bharatiya civilisation.