Hijab Row - An avoidable “Issue” for “Issue’s sake”

Question, whether the students (boys or girls) of a particular class or community have an indefeasible constitutional right to enter the campus of or a Class Room of a Government run or any other Educational Institution by wearing a particular apparel or piece of cloth as a sign of their religious identity, necessarily is a question to be taken care of, in the first instance, by the Management of Institution concerned, and then, if they found themselves unable to sort out the problem, by taking aid and assistance of the Government and/or its executive hand, say, Public Administration Authorities. If the problem still persists, either of the parties or any of the stake-holder may take recourse to legal remedies available to them under the law of the land, in such type of matters, to say, approach our higher constitutional Courts.

In the instant matter there was a simple incident of insistence of few Muslim Girl students of Government PU College, Udupi to enter the college campus/classroom by wearing a ‘Hijab’ or ‘Burqa’, which in traditional and orthodox Muslim families may be a must. Matter could have been sorted out by taking recourse to any one of the aforenoted mechanisms. College Management might have tried to find of some solution of the problem. Anyhow, fortunately, the matter is now in the seisin of the Full Bench of hon’ble Karnataka High Court, as also, under the close and curious watch of the hon’ble Supreme Court. Hence, legal and constitutional issues involved therein, surely and certainly, are going to be resolved by our constitutional Courts, which have sufficiently strong teeth to tackle such kind of issues. It would thus be absolutely inappropriate, neigh, impermissible, at this stage to comment on merits of the matter, this way or that way.

Suffice to note that, this is not the first time that such type of matters, having far reaching ramifications on religious sentiments of one or the section of the Society, as also, having direct bearing on extent and limits of the fundamental rights involved of that particular section of the Society, have reached, one or the other High Court, or even the Supreme Court. Surely, in all such earlier litigations, decisions must have rested on particular facts and circumstances, then obtaining in each of such cases vis a vis mandates of applicable Constitutional and statutory provisions. It may be that, given the prescription of a particular Dress Code by the concerned education institution, Court might have declined any relief to the students of a particular community, who might have been insisting on permission to wear a particular attire or follow a particular religious or practice to mark their religious or social identity, claiming it to be their fundamental right. Similarly, such types of reliefs might have been denied by invoking the principle that, in public life, ‘Collective rights’, have precedence over ‘individual rights’ of students, and in case of conflict, latter must give way to the former.

Be that as it may be. Presently, as noted above, the hon’ble Karnataka High Court, as also, the hon’ble Supreme Court, both are conscious and vigilant about the significance and importance of issues involved in the matter, as also, about the ramification which may ensue, if the matter is not sorted out on top priority, without undue delay. Evidently, the hon’ble High Court made headway by giving the instant matter a top priority heard and concluded hearing on day-today basis. At the same time, even after elaborate deliberations and lengthy discussions the hon’ble High Court in its judicial wisdom, consciously deferred the delivery of judgment on merits, may be for its serious concern about some larger public interest. We cannot and ought not to speculate and read the mind of the hon’ble Court.

Hence, prudence and call of peace and harmony requires patients, till some authoritative decision comes, in the first place by the Hon’ble High Court, thereafter, in case of need, if any arises at all, by the hon’ble Supreme Court, Particularly, for the students/girls who are raising their voice to seek protection of their fundamental right to wear ‘Hijab’ or ‘Head-scarves’, as an indefensible religious or other social rights, a piece of advice, better they remain, at least for present, patient and do concentrate upon their studies and upon their concerns regarding future carrier, instead of agitating the matter in the streets or in college campus. Converse would be counter-productive for their academic and future concerns. After all, matter is sub-judice in one of the higher Courts of law, and day-in or day-out, an authoritative pronouncement, befitting our Constitutional frame-work and constitutional ethos, is bound to come. Need not to remind that, we are governed by the Rule of Law, hence, are not only supposed to but also are bound to obey even the interim orders and directions of a competent Court of law.

In instant case, the hon’ble High Court, emphatically pointed out that, “…ours is a country of plural cultures, religions & languages. Being a secular State, it does not identify itself with any religion as its own. Every citizen has the right to profess & practise any faith of choice, is true. However, such a right not being absolute is susceptible to reasonable restrictions as provided by the Constitution of India.” Similarly, the hon’ble High Court showed its concern towards maintenance of peace and tranquility, as also, towards interest of students. For this, at one hand it observed that, “…interest of students would be better served by their returning to the classes than by the continuation of agitations and consequent closure of institutions. The academic year is coming to an end shortly”, on the other, the hon’ble High Court hoped and trusted that all stakeholders and the public at large shall maintain peace & tranquility. So, the State Government and all other stakeholders requested to reopen the educational institutions and allow the students to return to the classes at the earliest. At the same time, as an interim measure, “the Court restrained all the students regardless of their religion or faith from wearing saffron shawls (Bhagwa), scarves, hijab, religious flags or the like within the classroom, till further orders.” This order was specifically confined to those institutions which prescribed the student dress code/uniform.

Unfortunately, the violent and aggressive agitations by the one or the other group in various parts of the State of Karnataka, gradually spreading in the other parts of the Country, unmindfully, even after the indulgence and serious concern shown by the hon’ble High Court, certainly project a grim situation. This is highly deplorable and presents an ugly picture, in which, the concern and command of higher judiciary, seem to have been reduced to a mockery.

More condemnable and un-acceptable is the clear defiance of the interim directions of the hon’ble High Court by the stake-holders, particularly, some private institutions and Education Department, in liberally and loosely interpreting the said order according to their own whims and fancies, in order to serve their own purposes. In the process, they further aggravated the already tense situation by banning the students to enter the campus or classrooms by wearing ‘hijabs’ unmindful of the fact that, those directions of the High Court did not apply to them. In fact, though the order in question was otherwise clear and un-ambiguous in its terms, even then, on 23^rd February, 2022 by an oral order the hon’ble High Court clarified that its interim order is applicable only to State Government Institutions which have a dress code, that too, in respect of students alone, not to the teachers.

But then, if the news dated 02.03.2022 appearing in Times of India bears some substance, refusal of four Girls to appear in Practical Examination of PU Commerce stream because they were not allowed to don the ‘hijab’, is more unfortunate and disturbing. TOI reported that, most of the students in the college in question belonged to Muslim Community and the practical exams, which were held in the last week, proceeded smoothly without any trouble. Except for those four girls, all other students, who took practical tests, either in Science Stream or even in Commerce stream, appeared after removing the ‘hijabs’. Principal of the concerned College stated to have sought clarity from the Education Department, whether the ban imposed by High Court is also applicable to Examination Centre or not.

Whatever that may be, one thing is clear that, mis-interpretation or the mis-application of said interim directions of the High Court led to a chaotic situation, providing a room for applying those directions to ban entry of students wearing particular religious attire. Example is not far behind to seek. One of the institutions even prevented a girl belonging to Sikh Community from entering the class with ‘Turban (Pagari)’ on her head. In any event, it is not a happy situation. Nevertheless, the stand and stance taken by those four students, is in ignorance of the fact that their refusal to take Practical examination is at the cost of their academic interests and future career, and that, they are the ultimate looser. By no stretch of imagination this can be said to a prudent or appreciable approach. Again, if the version put forward by these girls, if turns out to be true, then there is big question mark on conduct and behavior of concerned teachers/Examiners.

On deeper scrutiny, the aforenoted developments show that there is a grim and disturbing side of the spectrum. Some external force, from this side or that, is at work.

Unfortunate is the perilous change of societal mind-set, particularly, that of Youths, who supposed to be the foundational pillars of Future India, the hopes and expectations of their parents, who spent and spending all their worth and sources in bringing-up these Youths in a genuine expectation that even at the cost of their present hardships they are building an asset for the future India. But, ill-motivated and ill-minded vested lot amongst the society, with its calculated move and in a conspiracy to gain some cheap popularity, with an eye to capture some political mileage or some political favour from equally rotten lot amongst the active politicians, find immature and innocent minds of the potential Youths as easy prey for instigating, provoking and brain-washing. Very often, such culprits disguised in White-collars make the innocent and immature Youths to indulge in un-mindful, aim-less and illegal agitations, which, many at times, get violent shape, causing total disruption of public peace and tranquility, loss of lives, loss to public and private properties etc. etc. Things get worse, when in order to execute such dirty game-plans to put one sect of society against the other, the power hungry, rotten lot amongst the contemporary politicians, add fuel by extending their support and patronage, not for betterment of mob resorting to such violent agitations, but only to achieve some agenda hidden in such types of divisive, anti-social and un-constitutional game plans

In the context of present ‘Hijab’ row’ of Udupi College, when We look at viral videos of the incidents that followed, certainly, a question strikes to the mind, whether, We live in India, a democratic nations supposed to be governed by Rule of Law, spelt out in our Constitution. If the viral videos are genuine and un-doctored, then the presence of a mob, formed of members having sfaron scarves (Bhagwa gamachhas) around their necks, shouting ‘Jai Shree Ram’, ‘Jai Shree Ram’, chasing and surrounding a lone Girl with a Hijab, well within the precinct of the Educational Institution, which is supposed to be a holy place of Education, by no stretch of imagination or logic can be countenanced. Instead, same are required to be condemned and disapproved, at least by those, who are supposed to believe and have faith in our Constitution. Worst was the hoisting of a Safron Flag over the Flag-post of an educational institution, specifically meant for hoisting National Tri-colour on various eventful days of national importance and celebrations. This aspect is too serious. In such types of incidents, participation of outsiders having pushed in by some seasoned game-planner cannot be ruled out.

Noteworthy that no section of the society can have any locus, in agitating against the voice raised by members of another section of the society seeking enforcement of their Civil or Constitutional right. As noted in initially stage of this write-up, whether to accept and enforce right of particular individual or a particular sect of the society, as of necessity and essentially is ultimately a matter between the voice raiser and the authorities empowered or tasked to enforce the rights claimed. In our legal set-up and constitutional framework, in such matters, where is the scope for third party intervention, that too, by resorting to the mechanism of counter-agitation?

That apart, contextually seen, how We Hindus can take exception when a female member of other community which believe in and follow tenets of other faiths and religion, wears or insists to wear a ‘Head Scarf(Hijab)’, to hide her face or to protect her face, more so when, in our own traditional and orthodox Hindu families, particularly, in the States like Uttar Pradesh, Rajasthan, Haryana, Madhya Pradesh etc. there is a well recognized and well followed practice that married women hide or are made to hide their faces with ‘Ghoonghats’ or ‘Chuunis’, while appearing before elders in matrimonial household. In such families, even young un-married girls are supposed to wear chunnis, while going out doors, for whatever purpose that may be. Strangely enough, even in metropolises, now days, there is a growing trend that young girls, either amongst the working class or the students cover their half faces with scarves or chunnis, particularly, in winter season, may be to protect face skin from scorching heat or sun-light. Then, why to take exception, if someone belonging to Muslim community; insist on wearing ‘hijab’ or ‘Burqa’. As stated herein in before, it is a different question as to what extent they are permitted to exercise such a right. This question ought not to bother members of other religions.

True, we are not a ‘Nation’, like, present Afghanistan, being ruled by fundamentalists and hard-core Muslims after its recent take-over by ‘Taliban Group.’ Said Group had extreme ideology of strict adherence to ‘Sharia Law’, rightly or wrongly. It may also be that, in all Muslim Countries, such fundamentalists’ ideologies do not dictate the terms of appearance of women in public and society, rather, in most such countries women go liberally hand-in-hand with their counter-part men in every walks of life, living a current day modern life-style. Just a few days back. It was so even in respect of Afghanistan prior to capture of its reigns by the Taliban Forces.

But, can the above facts be taken as justification for intruding into or interfering with religious beliefs, practices and choices of the followers of some other religion, thereby, harming their religious and/or social sentiments or making them insecure? Certainly ‘NO.

Given the emerging nationwide scenario, it can only be said that, unfortunate is the ever growing tendency to, ‘Raise an Issue for the sake of an Issue’; to provoke and instigate in order to gain some political mileage; as also, a hidden agenda to pollute the mind-sets of and brain-wash the youths of a particular religion. Instances of fall-out of such illegal, unconstitutional and dangerous tendencies, are not far off to seek, as we have already witnessed and are still witnessing the ugly spread of violent and aggressive agitations, today here and tomorrow there by fanatics who have no belief in legal solution to such type of constitutional issues.

 Instant one is a classic example, that unmindful of the fact that the hon’ble High Court is sparing no efforts on its part to set-right the controversy, at the earliest, the agitations and street-fights continued unabated. Moreover, such un-desirable incidents still continue, unmindfully, irrespective of the fact that the hon’ble High Court after concluding the matter by hearing on day-to-day basis, in its judicial wisdom, consciously and cautiously reserved its final verdict, which may come at any moment. That apart, there is an emphatic, but commanding assurance of the hon’ble CJI Mr. N. V. Ramana, that the Supreme Court is there to take care of fundamental rights of every citizen. Hon’ble Supreme Court was and is curiously keeping a watch on day-to-day progress in the matter.

Prudence thus requires, patients and belief in our judiciary, which we are bound to have. Particularly, students are better advised to remain concentrated and focused on their academic pursuits and future careers, rather than playing puppets in the hands of dirty minded selfish politicians or vested interests.

Generally speaking, better if we remain warned of against ill-motives and ill-designs of power hungry forces. Ultimate looser and sufferer would be one or the other, amongst us.

As the emerging scenario presents an un-happy situation at the front of public peace and harmony, the concerned State Government/s, as also, the Central Government, are supposed to take an urgent call on such street-fights and agitations, which may take ugly turn at any point of time resulting in unpleasant disruptive consequences.

 We can only pray and request.

Published on :  03.03.2022, Delhi

N. K. Vuttsya (Advocate)

Writer and Consultant Editor

Capital Law Infotech (Delhi)

(M) 88266 70911