Karnataka HC won't allow hijab inside classrooms

The Karnataka High Court is sure to accept the argument that wearing of the hijab inside classrooms up to the preuniversity levelis a reasonable restriction on the right to freedom of expression to maintain institutional discipline throughout Karnataka. This may serve as a precedentfor the rest of the country until it is dissected in the Supreme Court where it is sure to be carried in appeal.

This doctrine where a Muslim airman was not allowed to grow a beard to ensure military discipline sounds attractive. Every community has its own distinctive attire – the Sikhs their turbans, Hindu widows cover their faces with a ghunghat, Catholic nuns wear the habit, yet all are woven within the tapestry of being Indian. For it is these dissimilarities in language, beliefs and attire which make us Indian.

There are eight restrictions imposed by Article 19 (2) of the Constitution on the right to freedom of speech and expression guaranteed by Article 19 (1) (a). These eight restrictions have deliberately been kept vague and imprecise so that even unreasonable restrictions can be brought under the broad heads of security of the state, public order, friendly relations with foreign states, decency or morality, or incitement to an offence. Thereby, the right to free speech and expression is nearly nullified by these drastic curbs on what is guaranteed.

Be that as it may, the Karnataka advocate general, Prabhuling K Navadgi stressed that institutional discipline placed so-called reasonable restrictions on the right to wear a hijab inside classrooms during school hours as mandated by the Karnataka Educational Institutions (Classification, Regulation and Prescription of Curricula) Rules, 1995, though the hijab has not been expressly mentioned in these rules. He said the fundamental rightto freedom of speech and expression could not override the state law, which runs counter to well-established legal principles.

What takes our breath away was Navadgi's argumentthatthe rightto freedom of speech and expression guaranteed by Article 19 (1) (a) could not go hand-in-hand with the right to freely profess, practice and propagate any religion guaranteed by Article 25 but subject to the reasonable restrictions of public order, health and morality. Both these fundamental rights of freedom of expression and freedom of religion were “mutually destructive”, he argued.

If that is correct, it means that assertion of the right to freedom of expression leads to the destruction of the right to freely profess, practice and propagate a religion which would lead to absurd results. To counter this untenable argument, freedom of speech and expression can be construed as a species of the rightto freedom of religion. To propagate a religion, a believer wouldhave tousehis vocal cords by either giving sermons or publishing religious literature. Hence, boththese fundamental rights of freedom of speechand the freedom to propagate religion are mutually dependent but definitely not “mutually destructive” as Navadgi would have the judges believe.

Another of Navadgi's innovative arguments as reported in the media was that it couldnot be argued thatthe rightto wear any attire of your choice would come under Article 19 (1) (a) because there are many women who do not wish to wear the hijab. “Some women do not wish to wear the hijab. If your Lordships were to declare this as an essential religious practice,the consequences arehuge because all Muslim women would be forced to wear the hijab,” he said.

But what is anessential religious practice is left for the qazis and ulema to decide because judges are not theological experts. Navadgi's innovative arguments went on to say thatthe right to freedom of speech and expression is a fundamental right in a civic sense. “It is a cultural right because you give an option not to wear the hijab.In that case, you cannot use Article 25 (rightto profess, practice and propagate any religion of your choice). A Muslim woman can wear the hijab wherever she wants to but not inside the classroom where a uniform is prescribed,” he argued.

The matter being heard before a three-judge bench of the Karnataka High Court took a different turn with the arrest of Kannada film actor Chetan Kumar Ahimsa for casting aspersions in a tweet on one of the judges who is hearing these arguments. Apparently, emotions run high on what is seen as an assertion of Muslim women's identity.

In another twist, the Supreme Court issued a notice to the Centre and the states in a public interest litigation seeking to enforce fundamental duties which was introduced during the 1976 emergency by Indira Gandhi as Part IV-A. There are ten fundamental duties and an 11th fundamental duty imposed on parents making it compulsory for them to educate their children up to the age of 14 years. This was introduced in 2002 and can be construed as ensuring Muslim parents are forced to send their daughters to school – whether they sport the hijab or not.

These fundamental duties would mandate enacting more laws in areas as diverse as education, environment, national security, heritage conservation, communal harmony and scientific temper to name just a few. There are already a plethora of laws like the Prevention of Insults to National Honour Act, section 124-A of the Indian Penal Code, the Environmental Protection Act, the Ancient Monuments and Archaeological Remains Act and the Right to Education Act which already cover these areas. Whether a new law regulating the wearing of religious attire to schools can be enacted, remains to be seen.

The Madhya Pradesh chapter of the All India Ulema Board has told all the qazis to solemnise inter-faith marriages only with the consent of the couples' parents, even if the couple has crossed 21 years of age. This was done to repudiate the bogey that Muslim boys entice Hindu girls to convert them to Islam after marrying them. Laws based on religion are used by those who rule us to divide-and-rule like the British.

Olav Albuquerque holds a Ph.D in law and is a senior journalist-cum-advocate of the Bombay high court.