Hijab Verdict : How Preconceived Notions May Have Trumped Judicial Reasoning

1. How could Court make a universal declaration that wearing of hijab is not an essential practice without sufficient materials?

The High Court has observed that the petitioners have not made sufficient pleadings and produced enough materials to show that hijab was an essential practice of Islam. The Court observed that the material before it is "extremely meagre". Further, the Court said that there was no affidavit sworn to by a Maulana to explain the implications of suras quoted by the petitioners(Para XII(i) of the HC judgment). If that be so, it was a case for dismissal of the writ petitions on the ground that the petitioners have not established their claim. However, in a mind-boggling manner, the Court goes a step ahead to make a conclusive and universal declaration that the wearing of hijab by a Muslim woman is not an essential practice of the Islamic faith. How could the Court venture into making such a declaration when the material before it was "extremely meagre" and when it had, admittedly, no assistance from religious scholars? Remember, the petitions were not Public Interest Litigations. The petitioners were agitating a personal cause seeking right to wear hijab for themselves in classrooms. So, if the petitioners had failed to produce adequate materials, should not they alone suffer the consequences? How could the lapses on the part of the petitioners can give rise to a universal declaration which can bind the entire community?

Also, the judgment gives out the impression that the Court has adopted a pick-and-choose method with respect to the authorities cited.

To refer to Quranic verses, the Court placed reliance on "The Holy Quran: Text, Translation and Commentary' by Abdullah Yusuf Ali, (published by Goodword Books; 2019 reprint)". The Court chose this book saying that it was used by the Supreme Court in the Shayara Bano(Triple Talaq) case. In Shayara Bano, what the Supreme Court had endorsed was the authenticity of the "the text and translation" of that book(Para VII.2.(ii) of the HC judgment). However, here, the High Court has placed reliance on the commentaries given by Abdullah Yusuf Ali in the footnotes to the suras to reach the conclusion that hijab is an inessential practice. The Court says in the judgment that "none at the Bar disputed the profound scholarship of this writer or the authenticity of his commentary". It is pertinent to note that the petitioners had referred to other translations of the scriptures, which the Court did not accept saying that the authors' credentials were not established. The High Court also doubted the credentials and authority of the commentators who were referred to by the Kerala High Court in its judgment which declared hijab to be an essential practice(Para VII.2.(ii) of the judgment)

It is pertinent to note that the petitioners had placed heavy reliance on a Madras High Court judgment(M Ajmal Khan vs Election Commission) which had observed "it is, thus, seen from the reported material that there is almost unanimity amongst Muslim scholars that purdah is not essential but covering of head by scarf is obligatory". However, quite shockingly, there is absolutely no discussion of the said Madras High Court judgment in the hijab verdict.

The Court has also referred to an article written by Sara Slininger from Centralia, Illinois to opine that hijab is at best a cultural practice, although it has not mentioned anything about the credentials or the authority of the said author(Para IX.(v) of the judgment). As a person who closely covered the entire hearing spread over 11-days in the case, this author can most certainly say that the no side was seen citing the said article of Sara Slininger during the oral hearing.

2. Why has the Court not considered the impact of the Advocate General's concessions on the impugned GO?

During the hearing, the Advocate General of Karnataka, Mr.Prabhuling Navadgi, had conceded that the Government Order dated February 5, 2020, which was under challenge, did not intend to ban hijab. It may be recalled that the GO had certain observations to the effect that the banning of hijab will not violate Article 25 of the Constitution as it is not an essential religious practice.

The petitioners had argued that the State was subtly conveying to the College Development Committees to ban hijab and that such an attempt was unconstitutional.

When the GO came under the scrutiny of the bench, the AG submitted that the State does not want to interfere with religious practices and that the GO has only said that the students should wear the uniforms prescribed by the College Development Committees.

"Conscious stand of the state is that we do not want to intervene in religious matter. We could have said hijab was against secularism and order and could have said it is not permissible. We have not. It is a stated stand of the state we did not want to intervene", the AG had said while asserting that the GO was "innocuous".

The Bench pointed out that though the GO does not clearly say Hijab is prohibited, the order could be understood as such by common people. "You have not articulated properly that wearing of hijab is not prohibited. But these orders are meant for common people, teachers, students members of CDC.. how will they interpret it?", Justice Dixit had asked.

The Bench had also asked about the necessity of mentioning three judgments (pertaining to the right to wear hijab) in the GO.

The AG conceded that the references to hijab in the GO could have been avoided.

"On a better advise, these could have been avoided. But that stage has passed", the AG had responded.

The bench wanted to know from the AG if the State will have objections if any CDC allows hijab.

Without giving a straightforward answer, the AG said that the State will decide as and when a complaint against such a decision is brought before it.

Curiously, the judgment has no record of these concessions made by the Advocate General. Since the Advocate General is a Constitutional authority and not an ordinary lawyer holding the brief of the Government, his statements carry a particular significance. The effect of the AG's statements would have been that the CDCs are free to decide the issue without reference to the statements in the GO. If there was no intention to ban hijab, the references to it in the GO were giving rise to confusions and misunderstandings among the common public. So, there arises a natural and logical question why the GO makes references to hijab? The Court does not examine if the GO was manifestly arbitrary and discriminatory in this context.

By making a universal declaration against hijab and by upholding the uniform rule, the Court has complicated the issue in a manner contrary to the stated intent of the GO, as it is difficult now to imagine a situation of the CDCs allowing hijab. The State, at least on paper, had left the matter to the discretion of the CDCs. However, the Court, in effect, has travelled beyond the scope of the impugned GO and has made grounds for a universal ban for hijab in classrooms across the State, in a manner which the Government said it never intended. Truly a curious situation where the Court enlarges the scope of an executive order while repelling the petitioners' challenge against it.

Also, the Advocate General had conceded that the draftsman of the GO went a bit "over-enthusiastic" by referring to "public order" in it. Yet, the Court takes extra pains to justify the GO by making a strained interpretation that the words "public order" used in the GO should not be understood in the Constitutional sense.

3. Why has the Court not considered the argument of "indirect discrimination" raised by the petitioners?

The petitioners' counsel, especially Senior Advocate Professor Ravivarma Kumar, had raised an argument that the GO and the uniform rule was resulting in indirect discrimination as only Muslim girl students are getting affected.

"Why is Govt picking on hijab alone and making this hostile discrimination? Bangles are worn? Are they not religious symbols? Why are you picking on these poor Muslim girls? A bindi wearing girl is not sent out ,a bangle wearing girl is not. A Christian wearing cross is not touched. Why only these girls? This is violation of Article 15 of the Constitution", he had argued before the Court.

However, the judgment does not discuss this aspect. The argument is rejected in a single sentence saying that the rule is uniform for all religions.

"In matters like this, there is absolutely no scope for complaint of manifest arbitrariness or discrimination inter alia under Articles 14 & 15, when the dress code is equally applicable to all the students, regardless of religion, language, gender or the like. It is nobody's case that the dress code is sectarian", the Court held. However, the petitioners case was that though the rule is facially neutral only one community was getting targeted and hence it amounted to indirect discrimination.

In the Supreme Court judgment in Lt Col Nitisha versus Union of India, it was held that indirect discrimination is based on the effect and not the intent.

Two-tests are prescribed in that judgment :

First, the Court has to enquire whether the impugned rule disproportionately affects a particular group.

Second, the Court has to look at whether the law has the effect of reinforcing, perpetuating, or exacerbating disadvantage.

The Supreme Court discussed this issue while invalidating certain criteria for permanent commission in army, which were creating a disproportionate impact on women although the criteria was facially neutral.

The High Court judgment, except referring to Nitisha judgment as having been cited by the petitioner, does not analyze the issue in the light of the principles stated in the binding law laid down by the Supreme Court. The issues of indirect discrimination and violation of Article 15 are left unaddressed in the judgment.

4. What is the basis for Court's view that diversity must be effaced from classrooms?

The Court dismissed the petitioners' argument that classroom should reflect the diversity in society as "empty rhetoric".

"The school regulations prescribing dress code for all the students as one homogenous class, serve constitutional secularism", the Court said(Para XIV(2). The Court further said that allowing accommodation for hijab can establish a sense of 'social-separateness', which is not desirable(Para XIV (ix)).

These observations in the judgment are not based on any opinions or studies of educationists and are the subjective notions of the judges regarding how a classroom should be. The judges feel this is desirable. Obviously, there are conflicting views on the matter, as it is widely known that several schools, in India and abroad, give reasonable accommodation to religious and cultural identities(The petitioners had cited the example of Kendriya Vidyalayas allowing hijab).

Is not the Court entering into a policy domain reserved for other experts by making such observations? Why should the Court enforce its view on a matter(which is beyond judicial expertise) when there are multiple approaches in existence?

Also, this has to read along with the Court's finding(para XIV.vii) that the impugned GO was issued hastily - meaning without adequate deliberations. The Court tries to derive support from the preamble of the Karnataka Education Act which refers to the promotion of secular and scientific outlook as one of the Act's objectives. This takes one back to the question what should be the concept of secularism- should it be the absolute denial of religious displays in public spaces? These observations of the Court do not sit well with the observations made by it elsewhere in the judgment that India follows "positive secularism", which is not anti-religion but advocates religious tolerance.

One also witnesses the strange sight of the Court making it a case of duties versus rights, as it invokes the Fundamental Duty under Article 51A(e) to resist the petitioners' claim of fundamental rights(Para V(ii).

Also, is not the view advocated by the Court unrealistic in the context of Indian ground realities, where the very name of a student can often reveal religious, cultural and linguistic identities. Would the Court say that names indicating religious or cultural identities are not desirable for establishing "social-separateness"? What is the basis for the Court's thought process that a person's diverse identity is a cause for social divisiveness? Except the personal feelings of the judges, no other basis is discernible from the judgment for the view that uniformity should invisibilize diverse identities. The Court's observations here seemed ironic, especially considering the fact that elsewhere in the judgment it proudly stated that India "has been the sanctuary for several religions, faiths & cultures that have prosperously co-existed"(Para V(i)).

˘5. Why does the Court think banning hijab is emancipation of the Muslim women?

Towards the end of the judgment, there are certain observations to the effect that banning of hijab would amount to the emancipation of Muslim women(Para XVII). However, the judgment does not talk of any material which indicated to the Court that hijab was limiting the rights of the women. This is not a case where the religious practice was under challenge, unlike the Sabarimala case. This was a case where the Muslim women before the Court were seeking to exercise their right to wear hijab. Why does the Court assume that they need liberation from hijab? Is not the Court negating the agency of women by making such a sweeping assumption?

After quoting certain critical remarks made by Dr.Ambedkar against burkah and purdah, the Court says in the next sentence :

"What the Chief Architect of our Constitution observed more than half a century ago about the purdah practice equally applies to wearing of hijab".

It appears the Court has got burkah, purdah and hijab mixed up.

The Court further says "insistence on wearing of purdah, veil, or headgear in any community may hinder the process of emancipation of woman in general and Muslim woman in particular".

There were no materials before the Court which conclusively indicated that all hijab-wearing women were under coercion and were in the need of emancipation. In fact, the judgment starts with a quote from the article of Sara Slininger titled VEILED WOMEN: HIJAB, RELIGION, AND CULTURAL PRACTICE-2013, which states "While some women no doubt veil themselves because of pressure put on them by society, others do so by choice for many reasons".Despite that, the Court does not want to acknowledge the element of choice even in a single hijab-wearing woman. Since the observations of the Court are not made on the basis of any material or survey or data, it appears that prejudices and generalised assumptions may have come at play here.

The premise that Muslim women lack agency seems to have permeated the judgment and the analysis of the fundamental rights issue got subsumed under sweeping assumptions and preconceived notions.