Hijab row verdict: A grave constitutional wrong

The HC created new jurisprudence, dismissed relevant examples, and delivered a ruling lacking in empathy – it's up to the Supreme Court to right this

The High Court of Karnataka has delivered a judgement in Resham vs State of Karnataka that is singularly lacking in empathy. The petitioners before the court included the young Muslim women from a government PU college in Udupi who had been arbitrarily shut out of their own college by their own teachers in a video witnessed by people around the world. However, the court delivered a judgement of cold-blooded legalism that, without a word of commiseration for their suffering, went on to snuff out the rights of the young people before it to privacy, dignity, religious expression and, most fundamentally of all, to education.

The judgement has upheld the legality of the notification of the state government that essentially banned the hijab in colleges that have a uniform prescribed by a College Development Committee, ruling that the hijab is not an essential part of Islam. In colleges without uniform, the notification prescribed that clothes should be worn that are “in the interests of unity, equality, and public order.” The judgement authorises and legitimises the prohibition on the hijab by the government and College Development Committees. Of course, following the judgement, we can anticipate the prohibition on the hijab coming into effect in many more colleges.

Also read | Hijab verdict: ‘Reasonable accommodation’ lost out to ‘reasonable restriction’

This was not a dispute that involved balancing the rights of the individual over the rights of the community, as the court would have us believe. There was no young Muslim woman before the court asserting that she wanted to attend college without the hijab but was prevented from doing so. In the absence of any factual dispute between the individual right to expression against a community norm of wearing the hijab, the Government of Karnataka, in a duplicitous act of benevolent patriarchy, claimed to represent the concerns of Muslim women who don’t want to wear the hijab. The court sanctified this claim.

What embodies the heartlessness of the judgement is the dismissal by the court of any via media solution between the interest of the State to prescribe a uniform and the interests of the individual to manifest their faith or to express their identity via their dress. A via media would have been based on the principle of ‘reasonable accommodation’ and allowed for students to, in addition to the uniform, wear a hijab of the colour of the ‘prescribed dress code’. However, the court argued that any such accommodation “would establish a sense of ‘social-separateness’” and would “offend the feel of uniformity which the dress code is designed to bring about amongst all the students regardless of their religion & faiths.” The Karnataka High Court cites examples of balancing rights, such as the uniform prescribed in Kendriya Vidyalayas which allows for the headscarf and turban in a prescribed colour, only to then dismiss it as militating against the very concept of the school uniform.

After concluding that the hijab is not a part of the essential practice of Islam and the right to wear it is not protected under Article 25, the court concluded that the right to wear a hijab is at best a “derivative right” which can be circumscribed “consistent with…discipline & decorum” in what it calls “qualified public places like, like schools, courts, war rooms, defence camps, etc.”

The idea of a ‘derivative right’ has no constitutional sanction, neither does the language of a ‘qualified public place’. Both concepts aim to dilute what are core freedoms, namely the freedom of religion, the right to expression, and the right to dignity. The Vienna Declaration states that human rights are “universal, indivisible and interdependent and interrelated”. There is no concept in human rights law of one right having a lesser status than another right or of a right getting diluted based on the location where it is exercised. Further, the idea that schools, courts, war rooms and defence camps are somehow of a similar nature and rights melt away when one is in these spaces enjoys no constitutional sanction. In its creation of new jurisprudence, the Karnataka High Court seems to have taken a step in the direction of the infamous Supreme Court judgement re-criminalising same-sex relations in Suresh Kumar Koushal, where the court held that LGBT persons were “miniscule minorities” who had “so-called rights”.

The court has also blithely diluted the constitutional requirement that the government must show that its action of issuing the notification was a reasonable exercise of its power. While the judgement concedes that the government notification is “hastily issued”, the manifest arbitrariness writ large in the notification is casually brushed aside as a “feeble ground”.

When a statute or notification is to be tested on grounds of ‘manifest arbitrariness’ as per the Supreme Court decision in Shayara Bano, what is required to be shown is that there is a “determining principle” underlying the regulation, and the regulation is not promulgated either “capriciously” or “excessively”. The UK Supreme Court, ironically in a judgement cited by the Karnataka High Court, shows what it means to demonstrate that an action is not “capricious” or “arbitrary”. There must be a procedure followed before arriving at a decision by the authority. In the UK case, the dress code which allowed the hijab but prohibited the Jilbab (long coat-like garment worn by Muslim women) was arrived at after extensive consultations with parents and teachers and Muslim parents were taken into confidence before the dress code was promulgated. This, the court concluded, was a “thoughtful and proportionate response to reconciling the complexities of the situation”. The Karnataka High Court’s judgement was neither thoughtful nor proportionate.

This judgement stands alongside other judgements in the history of constitutional jurisprudence in India that have had the effect of depriving women of rights. The fact that the judgement misapplies rights-affirming judgements like Sabarimala and the words of strong supporters of women’s rights such as Babasaheb Ambedkar to deprive women of rights only adds insult to injury.

It is up to the Supreme Court to right this grave constitutional wrong.

(The writer is State President, Peoples Union for Civil Liberties)

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