Allowing it for one section and disallowing it for the others would undermine the very idea of secularism, it held
The split verdict of the division bench of the Supreme Court in a petition challenging the Karnataka government’s order banning the headscarf, hijab, worn by Muslim girl students would lead to a delay in deciding the issue, but it has put the matter in perspective for a new larger bench.
One of the judgments upheld the verdict of the Karnataka high court which had found the state government order in alignment with constitutional provisions. It questioned the logic of students belonging to one religion being given an exception to the uniform in educational institutions. Allowing it for one section and disallowing it for the others would undermine the very idea of secularism, it held.
The uniform in schools fosters the idea of a level playing field for all students — it instills a sense of belonging, promotes equality and helps with focus on learning as students would then cease to be bothered about their social currency, the judge reasoned.
The other judgment took the opposite view brought sociological realities back in the picture. The judge reduced the whole controversy into a single question — should the Muslim girl who finds the hijab a ticket to her education now see the doors of schools and colleges close upon her owing to the order? Banning the hijab neither helps her cause or that of the State, he held. By bringing in this angle, he demolished the argument of a section of students who sought permission to wear saffron shawls should the hijab be permitted. That question will arise only when the shawl becomes the ticket to their education, according to him.
This judgment steered clear of the question of whether the wearing of hijab is an essential religious practice or not. Instead, the judge insisted that it is the woman’s choice, and her choice alone, and the government must have reasons to stop her from exercising that choice, protected by Article 19 (1) of the Constitution.
The Constitution provides for reservation for the weaker sections of society in the same Article 14 which assures equality for all. This is a paradox but was necessitated by the social reality that a section of our citizens will forever be marginalised if they did not get special help. The Constitution will not allow the State to remain a mute spectator while the weak, historically underprivileged fight the entrenched forces. It hence introduced positive discrimination to make for a level playing field.
Our democracy is a work in progress and the Constitution, the Supreme Court has repeatedly said, is a live document which needs amendments and interpretations to reflect the realities of time. The Parliament and the constitutional courts have risen to the occasion in the past to ensure that the statute came to the aid of the less privileged. There is an entrenched patriarchy which seeks to stop the girl child from accessing education.
They might even throw religious edicts at families in order to push their agenda. Hijab first, kitab later, they might insist. The State’s options are either to allow such reactionary forces to prevail, which will result in a section of citizens to remain in shackles forever, or to intervene on their behalf. The top court will now have to decide if it should take recourse to a mechanical interpretation of the Constitution or take a larger view of the question of individual choice and the right to access to education.