At the outset, it must be said that the unseemly controversy that dogged the limelight for quite some time over the wearing of hijab in educational institutions in Karnataka was most unfortunate. How a 19-year-old girl named Muskan Khan studying in B Com Second Year was misbehaved with over wearing of hijab by about 30 to 40 young men has become the talk of the town not just from where Muskan hailed or in her state alone but all over India and even in many other countries of the world! At PES College in Mandya, second year B.Com student Muskan was the face of resolute defiance while confronting boldly a crowd of young men wearing saffron shawls who heckled her and shouted religious slogans. Muskan disclosed that she was allowed to wear the burqa on campus and the hijab inside classrooms. She also disclosed that, “My college administration and principal has never opposed us wearing the burqa. Some outsiders are forcing it. Who are these people to stop us? Why should I listen to them?” Absolutely right!
Needless to say, as an Indian and as a civilized person, I definitely feel most anguished, most appalled and most aghast to see right from my own eyes in different news channels with what had happened so brazenly with Muskan Khan even though she is a Muslim and I am a Hindu as there was no justification to haul her up in the manner in which she was roughed up as we witnessed for ourselves! Who am I or anyone else to dictate what dress exactly Muskan Khan or any other girl or women in any part of the world will wear? It is their own fundamental choice which dress they want to wear! Rahul Gandhi who is Congress leader while supporting Muskan choice to wear hijab said that, “By letting students hijab come in the way of their education, we are robbing future of the daughters of India. Ma Saraswati certainly gives knowledge equally to all. She doesn't differentiate.”
Even as huge tensions simmer over the row of wearing of hijab and the matter reaches the Karnataka High Court, we have to wait and watch to see which way the dice rolls finally. We also saw how a petition for transferring the cases from the Karnataka High Court to the Supreme Court was mentioned by none other than the former Union Law Minister and three time former President of Supreme Court Bar Association – Kapil Sibal before Chief Justice of India NV Ramana. But we saw how the CJI Ramana refused to relent to give a date for an urgent hearing while pointing out that the High Court was already seized of the matter.
To put things in perspective, it certainly cannot be ever denied that the Kerala High Court in a learned, laudable, landmark and leading case titled Amnah Bint Basheer vs CBSE in 2016 in WP(C). No. 6813 of 2016 (B) dated 26-04-2016 had granted permission for Muslim girls to wear Hijab for the All India Pre-Medical Test [AIPMT] 2016 on the condition that they should be present at the examination hall half an hour before the exam for frisking if necessary. The petition was filed by Amnah Bint Basheer who was a candidate. It certainly cannot be dismissed lightly that the Kerala High Court had declared hijab as an essential religious practice of Islam and allowed two Muslim girl students too wear it while appearing for the CBSE AIPMT.
Put it simply, it may be recalled that prior to Amnah’s case, we had also seen how in Nadha Raheem vs CBSE (2015), the dress code that was prescribed by the CBSE for appearing in the All India Pre-Medical/Pre-Dental Examination was at issue. The Board had only allowed wearing of half sleeve kurta/salvar to appear in the competitive examination. The two aggrieved Muslim girls had approached the Kerala High Court contending that the dress code prescribed by the CBSE would prejudice them, insofar as their religious custom mandates them to wear a headscarf and also full sleeve dresses. Justice K Vinod Chandran conceded that it could not be ignored that in our country with its varied and diverse religions and customs, it cannot be insisted that a particular dress code be followed failing which a student would be prohibited from sitting for the examinations. So we see that Justice Chandran refused to pass any blanket order but directed the CBSE that the petitioners who intended to wear a dress according to their religious custom, but contrary to the dress code prescribed by the CBSE, should present themselves before the invigilator half an hour before the examination and on any suspicion expressed by the invigilator, they would also subject themselves to any acceptable mode of personal examination as decided by the invigilator. It was also directed that if the invigilator required the headscarf or the full sleeve garments to be removed and examined, then the petitioners should also subject themselves to that. In addition, CBSE was also asked by the Court to issue general instructions to its Invigilators to ensure that religious sentiments be not hurt and at the same time discipline be not compromised.
Furthermore, it also cannot be glossed over that the senior advocate Devadatt Kamat appearing on behalf of the aggrieved students argued in the Karnataka High Court that the right to wear hijab is an essential religious practice under Islam and the State is not empowered to interfere with such rights under Article 14, 19 and 25 of the Constitution. Constitutionally, a right under Article 19(1)(a) can only be limited on 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. Chapter 24 known as “The Light” in verse 31 in “Holy Quran” allegedly makes a reference to ‘Khumur’ or a ‘headscarf’. Kerala High Court had ruled that if there is a practice which a believer thinks is part of his faith and that practice by itself does not violate public order or infringes upon anyone’s freedom then the right to perform such a religious practice must be protected.
It also cannot be lost on us that the aggrieved students had been wearing hijab since admission for the past two years. Senior advocate Devadatt Kamat representing them had submitted that the aggrieved students have been wearing hijab since admission for the past two years. He averred further that, “This is not a case where students are insisting for a different uniform. They are only saying they will cover the head with the same colour of the uniform that is prescribed.
What’s more, it was also pointed out to the Court by senior lawyer Devadatt Kamat that even Kendriya Vidyalayas permit Muslim girls to wear a headscarf (Hijab) of the same uniform colour. Kamat also stated that, “Kendriya Vidyalayas even today they permit by a notification, that even though they have a uniform, Muslim girls are permitted to wear a headscarf of the uniform colour.” It was also submitted that permitting Muslim girls to wear hijab and Sikh students to wear head gear is a national practice in adherence to Article 25 of the Constitution.
While adding more clarity and to put it differently, Kamat then also hastens to add as his main argument before the Karnataka High Court that, “State is an outside authority, it cannot say that wearing a headscarf is essential practice or not. It has to be seen from the view point of a believer.” What is the harm in permitting the Muslim women to do so which they cherish so much and treat it as an inalienable part of their faith? I just really fail to comprehend!
It ought to be mentioned here that reference was also made to the Madras High Court judgment in M Ajmal Khan v. Election Commission on 7 September, 2006 wherein the High Court had observed that there is almost unanimity among Muslim scholars that purdah is not essential but covering of head by scarf is obligatory. Reliance was also placed on the Supreme Court judgment in The Commissioner, Hindu Religious Endowments, Madras v Shri Lakshmindar Tirtha Swamiyar of Shri Shirur Mutt on 16 April 1954 [1954 AIR SC 282, 1954 SCR 1005] wherein a five Judge Bench of the Apex Court comprising of Justice BK Mukherjea, Justice Ghulam Hasan, Chief Justice Mehar Chand Mahajan, Justice Sudhi Ranjan Bose and Justice Vivian had held that even matters of dress can form an integral part of religion in terms of Article 25 of the Constitution.
As we see, reference was also made to the Apex Court judgment in Ratilal Panachand Gandhi v. State of Bombay on 18 March, 1954, 1954 AIR SC 388, 1954 SCR 1035 wherein the Apex Court had primarily underscored that, “No outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner.” We need to concede that since the Holy Quran itself makes a reference to wearing of headscarf, it is not essential to refer to any other authority and accordingly such a practice should be protected under Article 25 of the Constitution.
It is a matter of grave concern that none other than senior advocate Kapil Sibal had sought an urgent hearing and had alleged that girls are getting stoned for wearing hijab and schools and colleges are shut in Karnataka following several clashes between students and others. This is just not acceptable in any civilized society. Every person has the right to wear what he/she wants to wear provided it does not violate norms of decency and public order.
It cannot be lightly dismissed that none other than Shobhaa De in Sunday Times editorial dated February 13, 2022 very rightly points out that, “This applies equally to the hijab vs saffron shawl confrontations that made Karnataka’s Chief Minister Basvaraj Bommai shut schools and colleges for three days. Looking at the television clips of young belligerent students waving saffron stoles while heckling hijab-clad girls on their way to class, made me wonder whether they were paid to perform for the cameras – if so, by whom?” De also rightly asks that, “Let me ask a counter question: Is it okay to wear saffron robes in Parliament but not hijabs to schools?”
Senior and eminent Supreme Court advocate Sanjay Hegde appearing on behalf of some students argued that the Education Act does not empower the state governments to prescribe uniforms in colleges. How can then state government act in breach? This is the moot question! We all know that on February 5, 2022 the Karnataka government had passed an order exercising its powers under Section 133(2) of the Karnataka Education Act, 1983. The provisions grants powers to the state to issue directives for government educational institutions to follow. Hegde also argued that the rules prescribed wearing of dupatta for women and the State cannot dictate the manner of wearing that dupatta if a student wishes to cover her head with it. Gautam Bhatia who is a Delhi-based advocate writes in Hindustan Times editorial dated February 8, 2022 that, “Our Constitution guarantees to everyone an inviolate “zone of freedom” in such personal matters as long as the effect of this freedom does not cause harm, or discrimination, at a broader social level. In the case of the hijab, there is no such harm or discrimination; under the law, therefore, the ban should be overturned.”
It is good to learn that the BJP government in Madhya Pradesh made it clear that no proposal to ban hijab (head scarf) in educational institutions in the state is under consideration. So there should be no confusion on this. Since the matter is pending before the larger Bench of the Karnataka High Court, we have no option but to keep our fingers crossed on what it rules finally on this and what the Apex Court rules in the end! We have to wait and watch to see which side the dice rolls! Whatever the Court rules has to be followed but what happened most unfortunately with Muskan and other Muslim girls like her who were ruthlessly heckled cannot be justified under any circumstances by anyone! No denying! Sanjeev Sirohi
