In the past weeks, tensions have been rising across regions of Karnataka as female students wearing hijabs have been told they can no longer enter and study in college. On 5 February, Karnataka government issued an order effectively prohibiting religious clothing in universities.
On 10 February, while hearing a batch of petitions regarding this issue, a three-judge bench of the Karnataka High Court passed an interim order issuing directions to re-open universities and restraining “students regardless of their religion or faith from wearing saffron shawls (bhagwa), scarfs, hijab, religious flags or the like within the classroom.”
The court noted, inter alia, that the right to freedom of religion is not absolute, persons are not allowed to disturb “peace and tranquility,” and that “the interest of students would be better served by their returning to the classes than by the continuation of agitations and consequent closure of institutions.”
This order is based on a flawed conception of fundamental rights, is contrary to principles guiding interim relief, and threatens to have grave consequences that could have been easily avoided.
Multiple Rights at Stake, Not Just Article 25
The case of the petitioners, who have asked for directions to protect their ability to wear the headscarves to the classroom along with any relevant uniform, is based on a number of fundamental rights provisions in the Constitution – not just separately, but when read together as well.
These claims, that complement and reinforce each other, draw on several judgments of the Supreme Court on the rights to autonomy, dignity, non-discrimination, identity and the right to freedom of religion.
Acknowledging the multiple provisions involved in this case is important because, as has been pointed out by others, individuals choose to wear hijabs for varied reasons – for some it may have more to do with religious freedom and freedom of conscience, for others it may be more directly concerned with the right to expression.
While evaluating the case put forth by the petitioners, the court was required to consider how the actions of the Karnataka government may impose different kinds of burdens on these individuals, and accordingly how any order would impact these rights.
No matter which right is traced back here, we find that the actions of the state government and local officials are curtailing the exercise of that right.
On the face of it, the Basavaraj Bommai government’s order impinges upon individual autonomy and dignity, it curtails religious freedom and it results in discrimination in imparting education.
Unfortunately, the Karnataka High Court failed to acknowledge the diverse ways in which these claims were advanced, and instead treated the case as purely one arising out of Article 25, which declares that “all persons are equally entitled to freedom of conscience and the right to freely profess, practise and propagate religion.”
Through this act of reframing the issues involved in the case, the Court ignores the rights derived from reading the fundamental rights provisions together, and it turns its back on the petitioners whose reasons for wearing a hijab may extend beyond religious belief.
Where Was the Assessment of Criteria for Interim Relief?
In any case, even the court’s reasoning on whether interim relief should be granted under Article 25 is flawed.
Typically, courts employ a three-step to determine whether interim relief should be granted in a particular case:
First, assessing whether there exists a prima facie case in favour of the petitioner;
Second, assessing whether the balance of convenience lies in favour of the petitioner; and
Third, assessing whether the denial of interim relief will cause irreparable injury to the petitioner.
Given that the court identified the case as one arising out of Article 25, the text of this provision should have informed how the court determined what amounts to a prima facie case, balance of inconvenience and injury.
A ‘prima facie’ case, simply put, refers to whether the petitioner at first impression has a case that ought to be considered further. The petitioners had argued that it was their sincere belief that their right to practice religion includes wearing a hijab.
They could also establish (at least for some of them), owing to a previous ability to wear hijabs to their colleges, that this belief was not insincere or rooted in an ulterior motive.
In any case, they also cited several judicial pronouncements holding that the hijab was an essential religious practice in Islam. The court did not give a finding on prima facie case but merely noted that “whether wearing hijab in the classroom is a part of essential religious practice of Islam in light of constitutional guarantees, needs a deeper examination.”
In order to decline granting interim protection at this step, the court needed to do more than simply assert that the issue requires determination, and it should have provided a substantive reason for doubting the petitioners’ claim. Unfortunately, no such reason is provided.
The reasoning of the court is equally faulty on the aspects of balance of convenience and irreparable injury.
The court is required to compare the relative ‘inconvenience’ that would be caused to the petitioners if the interim relief is not granted and to the respondents, ie, the state government if it is granted.
A finding of irreparable injury would imply that the injury caused to the petitioner is a material one that cannot be compensated for later through damages.
The Karnataka government’s order and now the Karnataka High Court’s order demands that the students choose between the hijab and going to university. This demand itself is an affront to a woman’s right to autonomy – many women who ordinarily choose to wear a hijab in public would be constrained to stay home.
Even assuming some students would be willing to cede their right to autonomy and faith in order to attend some classes in the coming days, it is naive to think that their harassment ends there.
As the court declined to offer them any protection, it emerged that their personal details – including phone numbers, parents’ names, and home address – had been leaked from their college.
Those who harassed students for choosing to wear a hijab earlier will identify and continue to target even students who might now choose to attend classes without a hijab.
Thus, the women are either denied education or they are subjected to further harassment after having already had to cede their autonomy and religious freedom. Both these injuries to fundamental rights are serious, and certainly cannot be compensated for later.
The court’s failure to consider the gravity of this tradeoff is lamentable.
What is the State's Interest Here, Exactly?
In this backdrop, it was necessary for the court to consider why the state government’s order is forcing students to choose between their right to education and other fundamental rights suddenly in the middle of an academic year.
In particular, the bench had to examine what state interest would be impacted if the order prohibiting hijabs had been suspended for the moment.
Article 25 limits the interests the State can claim to violations of public order, morality and health. As has been repeatedly noted by the Supreme Court in judgments, public order implies something graver than “law and order” skirmishes.
However, the state government brought no material or averments on record to show how women wearing hijabs could cause even a law and order situation, let alone a public order situation.
This glaring gap in the state government’s case is papered over with further unsound reasoning in the high court’s order. Without pointing to any particular law, the judges vaguely note that, “Ours being a civilized society, no person in the name of religion, culture or the like can be permitted to do any act that disturbs public peace and tranquility.”
Here, the high court proceeds as if the trigger for the protests was the act of Muslim students wearing hijabs, failing to note that the triggers were in fact the acts of the administration in not permitting entry to students wearing hijabs, segregating students, and ultimately, the government order prohibiting students from wearing hijabs.
This flawed representation of the sequence of events is problematic at multiple levels because it blames the Muslim students for making rights claims, and in the process it flips the way in which the court evaluates the issues involved in the case.
Through this flipped approach, the high court ends up pandering to the “heckler’s veto”, where violence caused by opposite parties is used as a ground to curtail the petitioner’s freedoms.
It is worth mentioning here that the Supreme Court has cautioned against the risk of heckler's veto becoming a ground to restrict fundamental rights to suppress voices.
Failing to heed this warning, the high court’s order implicitly legitimises the harassment of students wearing hijabs, and could be viewed as even broadly incentivising the further harassment of Muslim women, by implying that they are accountable for the displeasure that others express over what they wear.
Indeed, this process already seems to have begun, with colleges in other parts of the country now suddenly objecting to Muslim students wearing hijabs.
Despite the Karnataka High Court’s stated “pain” over the continued protests, and its seemingly diamond-hard hope that the unrest will now cease, the order does little to improve the tense situation in the State. In fact, it may well have made things worse across the country.
(Vikram Aditya Narayan and Jahnavi Sindhu are Delhi-based advocates. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)