Is ‘Hijab’ a Constitutional Issue?        Narasimhan Vijayaraghavan           

Is ‘Hijab’ a Constitutional Issue?

Narasimhan Vijayaraghavan

 

 

 

The Indian Constitution is based on the US’ Constitution. The legendary bureaucrat-jurist Benegal Narasing Rau, as consultant to the Constituent Assembly met Justice Felix Frankfurter and other experts,  across the world  and borrowed multiple inputs in framing our Constitution. In the US, individual and his personal rights are literally placed above the pedestal of societal rights. The individual’s rights do not always yield,in the US. It is not so in India.

 

Societal or public interest is paramount in India. Individual’s rights are subservient. Even in the matter of religious rights, the theme is not different in the two jurisdictions. These thoughts had sprung  to mind when the Hijab controversy broke out in Karnataka. It was escalated as a constitutional issue impinging on ‘essential religious practices’  and a Full Bench heard the cause.

 

The Full Bench heard the cause for days on end. And pronounced a 129 page verdict upholding that the State/schools were empowered to insist on ‘Hijab Ban’. And students belonging to a religion cannot avoid falling in line, relying upon their ‘religious practices’.

 

On March 15th 2022, in Smt.Resham v. State of Karnataka, a three-Judge Bench of the Karnataka High Court comprising Chief Justice Ritu Raj Awasthi and Justices Krishna Dixit and J.M.Khazi upheld the ban on the hijab in the State’s educational institutions. The Court held that wearing the hijab is not an Essential Religious Practice. It did not merit protection under Article 25 of the Constitution.

 

One wondered whether the Full Bench needed to tackle the cause as a constitutional one. Could it not  have been dealt with as a simple case of all students being constrained to abide by Karnataka Education Act,1983 in the matter of ‘Uniform’? And whether insistence under the dress code would tantamount to contravention of the constitutional a.k.a. religious rights of the students was a question, that at all needed to be gone into,  came to the fore?

 

We have this unique ability to camouflage or complicate simple cases as constitutional ones, to make a monumental statement! . Those in the legal fraternity. One strongly felt that the apex court may see the wood for the tress and catch the bull by the horns. And boy, they did! And how?

 

Hearing petitions challenging the Karnataka High Court’s decision to uphold the restriction on wearing hijab in educational institutions, the Supreme Court on  5th Sept,2022 asked : “You may have a religious right to practise whatever you want. But can you take that right to a school which has a uniform?”

 

“We will concede for a moment that you have a right to wear a scarf or hijab wherever you feel like, but can you carry that hijab to a school where uniform is prescribed,” Justice Hemant Gupta asked Senior Advocate Sanjay Hegde, who appeared for one of the petitioners.

 

On the argument that the Karnataka Education Act, 1983, was being invoked to deny education to some sections, the bench, also comprising Justice Sudhanshu Dhulia, said: “They are not saying that they are denying any right. What the state is saying is that you come with a uniform which is prescribed for the students.”

 

The senior counsel tried to draw parallels between a “chunni” (dupatta) and “hijab”, saying the former was already part of the uniform, but the court pointed out that the two couldn’t be compared.

 

Judges were trying to make it simple. As they adjourned the proceedings to 7th Sept,2022. To untangle  the so called constitutional knots. And  to the submission of the Additional Solicitor General appearing for the State of Karnataka  who stated that the issue was very limited, and pertained to discipline in school alone, Justice Hemant  Gupta asked– “How is the discipline of school violated if hijab is worn?”.

 

The  preliminary exchanges were quite crisp. One felt that the law lords were trying to make it a simple cause. And straightforward. Whether insistence on dress code, as is not uncommon, in  concerned schools, invoking the Karnataka Education Act,1983, impeded the constitutional rights of the students? Or quite a simple mandate relating to Uniform for ‘all students’? And whether there was at all a need to go into the issue of ‘Hijab’ being an ‘essential religious practice’ or not?

 

You see, ‘essential religious practice’ is even  a theologian’s nightmare. And  undeniable slippery slope for legal eagles. US Supreme Court Chief Justice Roberts, always says, “Courts’ should decide causes by dealing with ‘essential’ issues. Not indulge in fanciful adventures into issues that better be avoided. If causes can be decided on simple facts, as they present themselves, Judges should follow the rule to avoid going beyond” (paraphrased).

 

That is what he counseled his colleagues in the majority, in the recent Dobbs’ decision, on Abortion rights, which sweepingly went beyond and overturned a fifty year old precedent in Roe v. Wade, further polarizing an  already deeply divided nation.

 

One honestly believes that Resham case could be dealt with and decided on a simple factual matrix, as presented by it. The constitutional spin given to it by the lawyer community could and should be seen, for what it is- a spin. Thankfully, the Justices in the apex court appear to have caught it. Would they carry on the same route and  decide the simple case with a simple verdict? Or follow the intent and yearning of the advocates to portray it as a constitutional issue of monumental  importance in a ‘secular democratic republic’. Hope the Supreme Court sticks to the simple.

 

Whichever course the top court takes or decides and whichever way  they proceed and decide, to the academically inclined practitioner,  it is a mouth watering prospect to look forward to. Watch this space.

 

( Author of Constitution & its Making/Working- OakBridge Publications,2020/2021- and practicing advocate in the Madras High Court)