Hijab Row: How Karnataka HC is Enabling 'Heckler's Veto 2.0' in Garb of Equality

Heckler's veto previously targeted artists & writers in India but is now being used to attack an entire minority.

Anyone following the hijab ban row in Karnataka over the last week will by now have come across a very specific phrase: the heckler's veto.

In comments to The Quint, senior advocate Sanjay Hegde described the Karnataka government's order dated 5 February, which said students shouldn't wear clothes which disturb public order, as "inviting a heckler's veto on what people can wear."

During the ongoing hearings at the Karnataka High Court, senior advocate Devadatt Kamat, representing Muslim girl students who have been forced to stop wearing hijabs by their pre-university college, said that the Indian courts have clearly held that a "heckler cannot be allowed to veto a fundamental right."

Kamat is absolutely right when he says the courts have held this in the past.

Unfortunately, the Karnataka High Court has effectively ignored those years of precedent.

And in the hijab row, we see the evolution of the heckler's veto in India from a tool used for targeting artists and writers by conservative hardliners, into a weapon for oppressing a minority's cultural practices – an evolution which has grave implications for the country.

What is a Heckler's Veto?

The concept of the heckler's veto is simple.

You want to say something or do something which exercises one of your fundamental rights like freedom of expression – let's say you want to criticise casteism in a speech at a local festival. A bunch of goons do not like what you have to say, and threaten to cause a riot if you are allowed to speak.

The police and local authorities, worried about possible violence, cancel permission for the festival, or stop you from going and speaking at it.

And so, the goons (ie, the 'hecklers') have effectively vetoed exercise of your fundamental right, even though you were not doing anything wrong.

This isn't a situation where the speaker encourages or incites violence – it's where the reactions of those opposed to the speaker threaten violence. So, it should be obvious that the law should be on the speaker's side, not the heckler's.

Another key thing to note about a heckler's veto is that it can be nipped in the bud by the authorities if they do their job. Provide more security, take action against those threatening violence, have a public figure speak out against the threats.

But of course, that's in an ideal world where logic and fairness actually matter, and civil liberties are not at the mercy of politicians' petty self-interests.

In other words, not the India of today – and for many, many people over the years, not the India of yesteryears either.

India's Tryst With the Heckler's Veto

In truth, most Indians have long been familiar with the heckler's veto, often expressed in the form of "log kya kahenge" (what will people say, or the equivalent in your mother tongue(s)).

Many a personal decisions – like who you will marry or what you can eat – are subjected to the heckler's veto. Women and girls face the biggest brunt of this.

The only consolation one can perhaps derive is that this does not have legal sanction, and that our laws and courts would not allow the heckler's veto to override fundamental rights. But this isn't entirely true.

Section 295A of the Indian Penal Code literally codifies the heckler's veto, by punishing acts which 'insult or attempt to insult a group of people's religion or their religious beliefs.'

It was added to the IPC in 1927, after the chaos and violence that erupted as a result of the publication of 'Rangila Rasul' – an anonymous pamphlet that made scandalous claims about the Prophet Muhammad's private life.

Unfortunately, Section 295A remained on the statute books post Independence and was upheld by the Supreme Court in 1957.

Over the years, the intent requirement of Section 295A has been all but forgotten, and it has now became a powerful tool in the arsenal of religious hardliners to attack artists and writers – be it Hindu organisations attacking MF Husain's home, and threatening art galleries featuring his paintings, over his artworks depicting Bharat Mata or when Salman Rushdie's Satanic Verses was banned in India.

To add insult to injury, criminal cases are often registered against the artists – like with Husain – showing how the law in India can actually be used to facilitate the heckler's veto.

It doesn't matter that these criminal cases eventually end in acquittal or are quashed. The process is the punishment, and so the threat of outrage by people on the basis of religious 'feelings' becomes enough to shut down freedom of expression.

The Karnataka Hijab Row: Heckler's Veto 2.0

So, if the heckler's veto has been able to hold sway for so long in the country, why does the new hijab controversy feel different?

There has been an attempt to compare the current situation with the Shah Bano controversy of the 1980s, when the Rajiv Gandhi government passed a law to nullify a Supreme Court decision which benefited Muslim women seeking maintenance.

These comparisons are misplaced (as will be explained below), but there can be no doubt that the government gave in to the heckler's veto at the time.

Faced with the prospect of unrest and backlash from the Muslim community (read: Muslim male clerics who held outsize sway over the voice of the Muslim community), Gandhi did accede to their demands.

The attacks on Husain and other artists who allegedly upset Hindu sentiments were supported (if not organised) by the Shiv Sena and organisations affiliated with the BJP, and were part of the way in which Hindutva politics gained its foothold in India in the 1990s.

So, it's not that the hijab row is different because it has a political angle to it.

But the purpose for which the heckler's veto is being used here is no longer the same. While political mileage may have been taken from the usage of the heckler's veto and government authorities' failure to stand up to it, the target in the past was never to attack a particular community.

In the current crisis, what is being heckled is not some speech or art which is claimed to attack someone's religious feelings.

Instead, what is being targeted is a purely personal cultural practice that is followed by many members of one particular minority community. The hijab is, at the end of the day, a very 'visible' cultural practice, and so curbing it is a particularly powerful way to attack and discriminate against the Muslim community, as it warns them about openly expressing their identity.

The BJP government in Karnataka has tried to hide behind a lot of things to justify their ban on the hijab in classrooms, but at the end of the day, their claims come down to one thing: allowing Muslim girls to wear the hijab is a disturbance of equality, unity and public order.

This isn't about the Muslim girls doing anything themselves, it's about how others around them (whether students or teachers) react to their wearing of the hijab. Which is, of course, nothing but the heckler's veto.

What makes this all even more disturbing is that it isn't even as though a bunch of fringe goons started raising a ruckus about the wearing of hijabs by the girls and it snowballed from there. This began with the functionaries of the state – officials at government-run pre-university colleges – refusing to allow girls to wear hijabs without any evidence of a threat to public order.

The Enabling of the Heckler's Veto by the High Court

The way in which the heckler's veto is being used here, to send a message to the Muslim community (and to other minorities as well, though not perhaps immediately), is already incredibly dangerous.

The worst part of it all, however, is that the Karnataka High Court has effectively enabled it, which is new, given the way the courts have addressed the heckler's veto in recent years.

At the outset, it should be noted that the Indian courts have not always been the greatest champions of free speech, and even the Supreme Court has failed to protect many times over the years.

However, there had been enough interventions by the courts where they have pushed back against attempts by governments to hide behind the threat of a heckler's veto.

In 2011, state governments in Punjab, Uttar Pradesh and Andhra Pradesh suspended screenings of Prakash Jha's movie Aarakshan. While Punjab and AP dropped the restrictions after Jha approached the Supreme Court (SC), UP kept its prohibition in place even though the movie had been approved by the Censor Board, arguing that allowing the movie to be screened could lead to a law and order problem.

SC quashed the UP government's ban, noting that "it is no excuse to say that there may be a law and order situation and that it is for the State Government concerned to see that the law and order situation is maintained and that in any democratic society there are bound to be divergent views."

In 2018, the apex court cited its decision in the Prakash Jha case to stay bans by a number of states on Sanjay Leela Bhansali's Padmaavat film and reiterated that "it is the duty of the state to sustain the law and order situation."

Similarly, a bench led by Justice DY Chandrachud took the West Bengal government to task in 2019 for its attempts to prevent the screening of the film Bhobishyoter Bhoot on the grounds that this could lead to public unrest.

The court reiterated that it is the duty of the government to ensure that an environment exists which allows people to exercise their fundamental rights.

Contrast this with what the Karnataka High Court did in its interim order on 10 February in the hijab ban case. After saying it was "pained by the ongoing agitations and closure of educational institutions," it noted that the right to profess and practise any faith of one's choice is not absolute and are subject to reasonable restrictions.

It then said:

"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 & tranquility. Endless agitations and closure of educational institutions indefinitely are not happy things to happen... "

Remember that there had been no threat to public peace and tranquility by the Muslim girl students asking for the right to wear hijabs. Every disturbance in the state, including the heckling of a Muslim girl and the raising of a saffron flag, had been done by those objecting to Muslim students wearing the hijab.

Having cited these circumstances, the high court then said that pending the consideration of the petitions, "we restrain all the students regardless of their religion or faith from wearing saffron shawls (Bhagwa), scarfs, hijab, religious flags or the like within the classroom, until further orders."

What is this but a concession to the heckler's veto?

The order does not identify any facts on record which showed that the Muslim girls had created any public order disturbance, so its decision to not allow religious dress in the classrooms cannot be pegged on them.

Instead of directing the state of Karnataka to ensure there were no disturbances, the high court passed an interim order stopping Muslim girl students from simply following a basic cultural practice that harmed absolutely nobody else.

There are numerous flaws with this order, including its ignorance of established principles for grant of interim relief, but it remains to be emphasised just how bizarre it is that a constitutional court should stop the exercise of the right to freedom of conscience and religion on the basis that others might create a public order threat.

The precedent this sets is quite frankly terrifying. The court has basically said that if the majority community decides, without any evidence, that a minority's cultural practice offends them, they can threaten public peace and tranquility – and the court will not stop them.

Yes, it may eventually hold that the minority's cultural practice cannot be interfered with, but every day it allows the heckler's veto of the majority to reign supreme, it is giving the state a free pass to not perform its obligations.

In addition to the immediate consequences for people belonging to that minority who are being forced to choose between their faith and their ability to participate in public life, think of the message this sends.

That a mob can attack you because of the community you belong to, the government can target your community, and the judiciary, which is meant to be the institution you go to which helps you stand up for your rights against their might, will do nothing to protect you.

That is most certainly a new chapter for the heckler's veto in India, and it is one that can only end in darkness.