Karnataka High Court's Interim Order In Hijab Case Deserves Criticism

In the hijab case, the Karnataka High Court, through an interim order, has restrained students from wearing any sort of religious dress, regardless of their faith, in classrooms while the Court is considering the matter.

While calling for the re-opening of the educational institutions, which were ordered to be shut by the State Government in the wake of agitations over hijab ban, the Court ordered :

"Pending consideration of all these petitions, we restrain all the students regardless of their religion or faith from wearing saffron shawls (Bhagwa), and connected matters scarfs, hijab, religious flags or the like within the classroom".

The bench comprising Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi clarified that the order is only applicable to those institutions which have prescribed a uniform dress code.

While the order looks "facially neutral", the real affected parties are Muslim women students, who are asserting the right to wear headscarves as part of their faith.

This interim order deserves to be criticized as it is an unheard-of action of suspending the fundamental rights of the citizens at an interim stage, without bestowing any consideration on the arguments of prima facie case raised by the petitioners, and blatantly ignoring the settled principles relating to the balance of convenience and irreparable injury.

Now, this piece is not a debate regarding the essentiality of hijab in the practice of the Islamic faith or the desirability of uniforms in educational institutions without the display of articles of faith. The concern here is regarding this interim intervention made by the Court, which has in effect implemented the Government Order which has been challenged by the petitioners and has forced the Muslim women to stop their practice of faith for availing education, even while the "questions of seminal importance" raised by them are awaiting determination.

Principles on grant of interim relief ignored

As per settled principles, there are three tests guiding the grant of discretionary interim relief. They are- (i) Prima facie case (ii)Balance of convenience (iii) Irreparable injury.

To establish a prima facie case, the petitioners cited two judgments of neighbouring High Courts – Kerala and Madras – which opined that hijab is an essential religious practice^[1]. They also relied on the Bijoe Emmanuel decision of the Supreme Court(where relief was granted to Jehovah Witness students who were expelled from school for not singing the national anthem due to their faith) to point out that a bona fide practice of conscience is also protected under the Constitution. They cited passages from Holy Quran and Hadith which mandate the wearing of hijab. Apart from relying on religious rights under Article 25, the petitioners also argued that the dress is an expression of their identity, and is, therefore, a right protected under Article 19(1)(a). They also argued that the choice of dress forms part of the right to privacy under Article 21 and that State cannot dictate to them what to wear.

Prima facie case does not mean that the petitioners have to prove their case to the hilt. It means that they should show that they have an arguable case. What more is required for showing an arguable case than a Supreme Court judgment in a similar situation, two High Court judgments having persuasive value and the citation of relevant scriptures. However, the interim order makes absolutely no mention of these aspects.

Balance of convenience

According to this principle, the Court should compare the hardship caused to petitioners if the interim relief is refused and the hardship caused to the respondents if the relief is granted. On a weighing of comparative hardships, the Court should see where the balance would tilt.

Here, the petitioners assert that they have been wearing hijab throughout in classes since the beginning of the courses, until the practice was disrupted in December 2021. It is claimed that some colleges had rules permitting the wearing of hijabs having the same colour as the prescribed uniform. Now, at the fag end of the academic year, when nearly two months are left for the final exams, they are forced to remove the headscarf to attend classes. What is the harm in permitting them to complete the present academic year and attend the final exams based on their long-standing practice? The State says that it wants to bring uniformity in educational spaces by removing the display of religious identities to instil a sense of fraternity(It is a different question if this move has created more polarization and mutual distrust among the students). Can't the reforms intended by the State wait for two more months, till the next academic year? Can a change in a deeply sensitive issue be suddenly thrust upon students without sufficient notice and deliberations? The Court did not endeavour to think in these lines. There is absolutely no consideration of the balance of convenience in the interim order.

Irreparable injury

The Court has now forced Muslim women to make a difficult choice between faith and education. Exercise of one right will result in the extinguishment of the other right. The Chief Justice orally said during the hearing that "it is a matter of few days". Can someone who has been accustomed to a particular religious practice be asked to give it up "for a few days" as a condition to access education? Can they be asked to surrender their religious and cultural identity to avail State-aided education? It is the duty of a Constitutional Court to harmonize rights. However, here, the Court has created a situation of "either/or" with respect to the right to faith and the right to education.

The aspect of irreparable injury has not at all been discussed in the interim order.

Grave injustice

The discretionary relief at the interim stage is intended to secure the ends of justice. Here, the interim order has the effect of furthering the religious discrimination and alienation of Muslims, particularly Muslim women. While the Court's concerns regarding the disruption of classes are in the right place, it has not spelt out any reasons for its conclusion that students should waive their right to wear hijab in classes during the interim period.

"The interest of students would be better served by their returning to the classes than by the continuation of agitations and consequent closure of institutions", the Court observed in the order. However, the Court has not explained why normalcy cannot be achieved by allowing students to continue wearing hijab as earlier and by giving strict directions to the State to ensure peaceful atmosphere in campuses. To seek interim peace by altering the status quo to the detriment of the aggrieved party is an imposition of power than a resolution of the dispute.

Larger issue of erosion of minority rights

The hijab episode has to be also seen in the larger context of increased hostilities against the Muslim community over the past few years with the rise of Hindutva politics in the country. The Karnataka Government's order, which made a unilateral declaration that banning of hijab will not violate Article 25, will be added to the list of other State actions like CAA, love jihad laws, cattle slaughter laws etc., which have created an onerous impact on the Muslim community at ground level, though the provisions might look textually neutral.

The interim order makes a striking observation: "Ours being a civilized society, no person in the name of religion, culture or the like can be permitted to do any act that disturbs public peace & tranquility."

But this observation is not preceded by any finding regarding who exactly is behind the disturbance caused to public peace and tranquility. There are viral videos showing a group of men wearing saffron shawls heckling a lone hijab-wearing Muslim girl, while she was trying to enter college. There are also videos showing a group of men hoisting a saffron flag in a college campus. Certain videos show protesting boys discarding used saffron shawls and turbans. Some investigative reports indicate that there was a calculated mobilization behind the spread of anti-hijab protests across the State.

Why has the Court not bothered to put questions to the State Government regarding the groups behind the law and order issues, despite the Advocate General making a claim that "the State is in control"?. If one group disrupts law and order with the connivance of the state machinery, can that result in the extinction of legitimate protests by another group? Can the state allow the creation of a law and order issue through conscious inaction and then claim that the petitioners' assertion of rights is the cause of action?

There were also reports that one college asked Muslim students to sit separately, while permitting them to wear hijab, in what appeared as a horrific resemblance to racial segregation laws in the USA. The issue was brought to the attention of the single bench, which asked if it was like the "separate but equal" theory which was invalidated in the US case of Brown v Board of Education. The Advocate General vehemently objected to these submissions of the petitioner and claimed that the reports were baseless. Ideally, the Court ought to have called for a report in this regard, as it is a shocking complaint of discrimination. However, the Court did not undertake any exercise in this regard.

The episode also witnessed a bizarre development of another set of students starting to wear saffron shawls- in what looked like a manufactured campaign- to counter the protests of hijab-wearing women. Curiously, the Court has equated the established practice of hijab-wearing to saffron shawls, which started making an appearance after this issue surfaced. The Court might be under the belief that it has acted neutral by ordering both the practices to be stopped in classes. But, this appears to be a case of false equivalence, as the effect on both parties is wholly incomparable.

This situation reminds one of a quote made by French writer Anatole France : "The law, in its majestic equality, forbids all men to sleep under bridges, to beg in the streets and to steal bread-the rich as well as the poor."

In short, the Court has let down the students who have approached it reposing faith in it and has in effect acted like an executor of the very government order and college committee decisions, which have been challenged on serious constitutional grounds. Failing to ask the right questions and ignoring the relevant considerations, the Court has put an interim freeze on the fundamental rights of individuals. This order, unless corrected soon, will remain as an ignoble scar on our judicial history.

(Manu Sebastian is the Managing Editor of LiveLaw. He may be contacted at manu@livelaw.in. He tweets @manuvichar)