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Mainstream, VOL LX No 14, New Delhi, March 26, 2022

Karnataka High Court’s Hijab Judgement: Blow To Liberal Value of The Constitution | Vijay Kumar

Friday 25 March 2022, by Vijay Kumar

The full Bench judgment of the Karnataka High Court upholding the order of Karnataka Government prohibiting the wearing of hijab in college represents grave blow to the liberal value of the Constitution, particularly emanating from its Preamble. The hijab judgment is untenable on numerous counts.

The judgment posed a wrong question as to whether wearing hijab was an essential practice of Islam, and, after referring selectively to the works of Islamic scholars, answered the question that wearing hijab was not an integral part of Islam. The ‘essentiality test’ was not relevant at all in hijab case. The issue pertained to individual choice and autonomy was given short shrift in the judgment. In the process, the denial of individual choice and autonomy impinged on dignity, which is one of the integral facets of Article 14 (equality clause) and Article 21 (right to life and liberty).

The ‘essentiality test’ propounded by the Supreme Court in its famous judgment in Shirur Mutt case (1954) was never free from disputation. The critics of this test always argued that the judges are not theologian, who can pronounce on which practice is an essential part of religion and which is not. In fact, the Constitution Bench of the Supreme Court itself, while admitting Review Petition in Sabrimala judgment pertaining to entry of women of certain age in the temple, referred the ‘essentiality test’ to larger bench and, therefore, proprietary warranted that the High Court should have refrained from embarking on ‘essentiality test’, particularly when it was not relevant at all for adjudication of core issue.

The Karnataka High Court should have accorded primacy to individual choice and impairment of dignity in denial of choice by confining itself to ascertainment of facts that whether the choice of wearing hijab was contrary to public orde, morality and health. This issue, despite its determinative relevance was not touched by the High Court even with barge pole.

Along with the individual choice, the issue of equality came to the fore in hijab case. Article 15 outlaws discrimination on the ground of religion. In educational institution, the denial of wearing hijab or any marker of religion such as wearing Cross by Christian, Turban by Sikh and other markers by other religious groups, is plainly discriminatory, and thus, suffers from constitutional anathematisation. Thus, the Karnataka High Court failed to advert to the relevance and significance of mandate of Article 15 of the Constitution.

Yet another infirmity in the Karnataka High Court judgment in hijab case is complete misreading of constitutional principle of secularism and pronouncement of the Supreme Court on the subject. Unlike France, where Laïcité prohibits the use of any religious marker in public place and complete separation of Church and State in United States, secularism in Indian Constitution, as interpreted by Nine Judge Bench of the Supreme Court in Bomai case, means respect to all religion in equal measure. Wearing religious marker in college campus does not negate the secularism, as defined in Indian Constitution. The judges in the Bench should have overcome personal perception and should have shown fidelity to the constitutional conception of secularism. At personal level, this writer too does not like wearing religious marker in public place, but my personal likes or aversion is immaterial, when it comes to constitutional position on secularism , as consistently interpreted by the Supreme Court.

The text of Article 25 of the Constitution does not prohibit wearing of identity marker in public place subject to exception of public order, morality and health and other fundamental rights. The Karnataka High Court failed to examine the question as to whether wearing hijab by Muslim girl was contrary to public interest, health, morality and other fundamental rights. Far from disturbing the public order, morality and health, the ban imposed by Karnataka Government on wearing hijab violates the right to equality under Articles 14 and 15 and right to choice autonomy and dignity flowing from Articles 14 and 21 of the Constitution.

The order of the Karnataka Government upheld by the full Bench of the Karnataka High Court would result in regimentation in college campus a la military cantonment and police camp. This kind of regimentation, far from furthering the public order, morality and health, would be kryptonite for the diversities in cultural life and liberal ambience in the educational institution. The “essential test” in form of observance of practice from time immemorial would ossify the evolution of religion. The full Bench of the Karnataka High Court ignored that culture is always in flux, as there is inescapable element of fluidity.

Given the pronounced nature of unsustainability of the judgment of the full Bench of the Karnataka High Court, the challenge to the judgment in the Supreme Court and its admission would be a mere formality, particularly in view of the cleavage of opinion between Kerala High Court, on the one hand, and Bombay and now Karnataka High Court, on the other hand. In all probabilities the appeal against the judgment of the Karnataka High Court would be tagged with the pending review petition in Sabrimala judgment and only question that remains relevant is the kind of interim order passed by the Supreme Court.

The most serious implication arising out of the full Bench judgment of the Karnataka High Court pertains to adverse effect on the liberal value of the Constitution and constitutional morality. The essence of liberalism lies in the right to exercise one’s choice subject to the caveat that it does not hurt others. So long as the choice exercised by citizen or group of citizens do not harm others, the full play ought to be given to assertion of one’s choice and any attempt to deprive the persons from their choice would rob him/her off the human agency and would subvert the very substratum of liberal ethos of the Constitution.

At political level, there is a bizarre irony at play. The State Government run by a party known for communalism and secularism opposed the use of religious marker in educational institution. The opposition to wearing hijab by young Muslim girl by a party who appointed saffron-clad priest as Chief Minister of the most populous state in the country is hypocrisy without end and without shame.

(Vijay Kumar is Senior Advocate, Supreme Court of India)

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