Not mere passive religious tolerance, secularism is a positive concept in the Indian constitution: equal treatment of all religions, and Santosh Kumar v. Secretary, Ministry of HRD quoted Justice H.R. Khanna: secularism treats alike the devout, the agnostic and the atheist …dispel the impression that if a person is devout Hindu or devout Muslim, he ceases to be secular. Celebrated jurist Justice Krishna Iyer described himself as a Hindu fundamentalist, so imagining a conflict in the case of Muslims is a deliberate canard. “Breaking and entering” is an offence, so how do you break into closed minds?!
Says S B Chavan Committee in its report “students have to be made aware that the basic concept behind every religion is common, only the practices differ. Even if there are differences of opinion in certain areas, people have to learn to coexist and carry no hatred against any religion.”
What was the result of the ban on the hijab across States? Given the poisoned atmosphere slowly, carefully, inexorably, expertly crafted, wasn’t illegal violence unashamedly unleashed against girls wearing hijab by non-State actors only to be expected? If the State making the GO did not factor this result in its planning, if it did not control the illegal fallout, one would be justified in suspecting the ulterior intent, or competence, or both, of State actors. The sanctimonious “secularistic democracy where even a very weak man hopes to prevail over a very strong man (having post, power or property) on the strength of rule of law by proper understanding of duties towards the society” became only a mere hope, unrealisable it seems, and the expression “fight against all kinds of prevailing fanaticism, ill will, violence” rendered a joke.
T.M.A. Pai Foundation held jurisdiction granted by Art. 25(2) on making of law regarding economic, financial, political or other secular activities associated with religious practice was limited, and covers only a limited area associated with religious practice, in respect of which a law can be made. … religion cannot be intertwined with secular activities of the State. Any encroachment of religion in the secular activities is not permissible. This means that cannot be done by the State, not that a citizen must leave his or her religion outside the door while engaging in any secular acts.
Secularism thus means treating all religions equally, respecting all religions and protecting the practices of all religions. This positive meaning of secularism, non-discrimination by the State based on religious faith and practices, was tossed out when the GO came about, and then a Minister threatened that any teacher taking action against threads, bindis, etc. (all manifestations of religion but not Islam) would face strict action! The message revealed the intent, superimposed mens reason the pre-existing GO. Should the supreme court have considered this too? Yes. Why? Well, because it reveals more than the State was willing to admit. Elementary, my dear Watson. When Courts fail to see through façades, they allow themselves to be misled.
Conduct means behaviour, and code of conduct would refer to behaviour, not dress! The GO however, says “it has been brought to the education department’s notice students in a few institutions carrying out their religious observances, …has become an obstacle to unity and uniformity in the schools and colleges.” Clearly the GO is against religious observances whereas wearing a hijab is not any religious observance but merely an item of dress. It said “individual interest must yield to the larger public interest”: but what public interest is involved, especially where “conflict in competing rights can be resolved not by negating individual rights”?
GO EP14 SHH 2022 Bengaluru of 05.02.2022 mandated government schools to abide by official uniform and private schools a uniform decided upon by the board of management.
In colleges if the management mandates a uniform, students should wear clothes that are in the interests of unity, equality and public order. Are we not implicitly told hijab leads to disunity, inequality, public disorder? Maybe bangles as well? And a bindi perhaps? Where do we draw the line where flexibility facilitates invaluable selective hostile misinterpretation, linguistic precision is avoided at all costs, to suit political bosses, while courts have their hands tied: they can interpret, cannot legislate! Convenient, no?
The Karnataka Education Act, 1983 was enacted to …cultivate a scientific and secular outlook via education. Sec. 7 entitles government to prescribe curricula, etc. – (1) Subject to such rules as prescribed, Government may, in respect of educational institutions, by order specify… (v) to promote harmony and the spirit of common brotherhood …transcending religious… diversities to renounce practices derogatory to the dignity of women; (vi) to value and preserve the rich heritage of our composite culture;” and so, some questions: (a) does a hijab deserve to be prohibited? (b) is it a practice derogatory to dignity of women or does it add to that dignity? (c) does it preserve our composite culture or destroy it? What could the judges have been thinking?
An order by the State constituted College Betterment Committees and the Committee of the Government Pre-University College for Girls, Udupi, on 23.6.2018, passed a resolution “to maintain the same uniform as last year like blue coloured chudidar pant, white coloured with blue colour checks top and blue pant coloured shawl on the shoulders. Do you follow? A blue shawl on shoulders is a culturally assimilated student. Cover the head, and you are a disruptive element, an obstacle to unity and uniformity. Logic and common sense may dispute it, but that is how it must be, for the Courts have spoken!
What was Krishna Iyer’s line? “Legislative futility must be eliminated so far as interpretative possibility permits.” If legislative provisions ought not to be rendered futile, with how much more force would that apply to Constitutional provisions? Let’s see. The judicial process is on. The larger bench is yet to be constituted. The night is darkest before the dawn. We wait, and hope.
Shafeeq Rahman Mahajir is a well-known lawyer and columnist based in Hyderabad
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