Hijab row reaches SC; let Karnataka HC examine issue: CJI

NEW DELHI: The Supreme Court on Thursday resisted attempts to make Karnataka hijab-row a pan-India controversy by asking a Muslim girl student petitioner from Udupi to await the High Court's decision instead of rushing to the SC and told her counsel Kapil Sibal that it would be improper for the SC to take up the issue when the HC is actively examining it.
Sibal made an out-of-turn mention before Chief Justice N V Ramana and sought urgent hearing on the petition filed under Article 32 of the Constitution by a 12th standard student Fathima Bushra.Apart from challenging Karnataka government's decision to ban hijab in educational institutions, she has raised a host of controversies - Citizenship Amendment Act (CAA), cow vigilantism, Gurugram open namaz, laws against religious conversion and hate speech at Dharam Sansad - to highlight persecution of Muslims constituting 18% of India's population.

Sibal tried every bit of his famous court craft to convince the CJI to take up the petition and test the constitutional validity of the hijab ban in educational institutions in Karnataka. But, CJI Ramana stuck to his oft-repeated stand that the HCs as constitutional courts must be given a free hand to decide important questions of law and that for every incident of alleged violation of constitutional rights anywhere in the country, petitioners need not rush to the Supreme Court.
The CJI said, "Mr Sibal, please let the Karnataka High Court decide the matter. It is actively examining the issue. Why should we jump in at this stage?" Sibal said that the issue needs urgent attention and relief to the students who are barred from attending the schools for wearing hijab, which is essential to their religious rights guaranteed under Article 25 of the Constitution apart from the students' right to freedom of choice, privacy and culture under Articles 19, 21 and 29 of the Constitution, respectively.
The CJI said, "Will it be proper to transfer the matter to the Supreme Court from the High Court at this stage? Let the HC examine the issue and decide. It is too early for the SC to intervene in the matter. If we take up this matter, the HC will never hear the pending petitions on this issue saying the issue is pending before the highest court.."
Sibal said the urgency is that the examinations are just two months away and because of a choice of dress, "merely a cloth", the girl students are deprived from schooling. He said a 9-judge bench of the Supreme Court is entrusted with the task of determining the contours of religious rights under Article 25, including entry of women into Sabarimala, Mosques and Agiyaris. "The hijab issue can also be referred to the 9-judge bench," Sibal said in his final push to convince the SC to take up the petition ahead of the HC hearings.
But, the CJI said. "It does not look nice or proper to take up the petition when similar petitions are pending before the HC." The SC gave no fixed date for listing of Bushra's petition for hearing. In her petition, Bushra said, "The observances in Islam, particularly when it comes to Muslim women’s dress, contrary to perception in some circles, infact empowers a Muslim girl to move out of the confines of her home and participate in public life. As with any religious practice, the nonobservance of the practice by some members of that religious community is irrelevant to its essentiality or binding nature."
"In the mayhem surrounding the debate around the right of a Muslim girl to wear Hijab to college/school, the most crucial thing that is being lost sight of, and conveniently so by the State Government, is the hooliganism and heckling of Muslim girl students by right-wing fringe elements of the society who in the recent past have been leaving no stone unturned to impose a majoritarian and supremacist intimidation of the Muslim minority in the country," she said.
She said the hijab ban is the latest "in a long line of events that have threatened the secular fabric of our society and polity, a number of which are sub-judice before the SC and other Courts in the country. These events include the Citizenship (Amendment) Act, 2019 which provides different rules for acquiring citizenship based on religion and specifically excludes Muslims, incidents of violence and riots targeting those protesting against the said CA Act, virulent protests against Muslims, who on account of lack of adequate mosques in the city of Gurugram, were offering prayers/Namaaz in open areas duly demarcated by the government/authorities for this purpose, incidents of cow vigilantism, laws effectively prohibiting religious conversion, and blatant calls for economic boycott and even genocide against the Muslims of the country in events self-styled as ‘Dharam Sansads’."
Bushra said, "The issues raised in the present petition are of such a nature that they are bound to have an impact on the rights of Muslim women across the country. The issues raised in any event invite the exposition of law insofar as Articles 14, 19, 21, 25 and 29 are concerned and it is therefore imperative that the Supreme Court, being the ultimate guardian of the Constitution, takes it upon itself to decide once and for all the extent of protection that a Muslim girl has under the Constitution of India."
The SC in 2019 had referred the examination of contours of Article 25 rights to a seven-judge bench and framed following questions - What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution? What is the inter-play between the rights of persons under Article 25 and rights of religious denomination under Article 26? Whether the rights of a religious denomination under Article 26 are subject to other provisions of Part III of the Constitution apart from public order, morality and health? What is the scope and extent of the word ‘morality’ under Articles 25 and 26 and whether it is meant to include Constitutional morality? What is the scope and extent of judicial review with regard to a religious practice as referred to in Article 25? What is the meaning of expression “Sections of Hindus” occurring in Article 25 (2) (b)? These questions were referred to a 9-judge bench by the SC in February 2020.
Bushra in her petition said, "The essentiality test, which is itself under re-consideration by a 9-Judge Bench, is invoked where a competing right or State interest is involved and a balancing act is required by the Court. It is submitted that a Muslim girl pursuing her education wearing a hijab/headscarf offends no right of any person and militates against no State interest. Therefore, even the essentiality test is wrongly invoked in the present facts. Wholly without prejudice to the above, the Petitioner seeks to demonstrate that the Islamic practice of wearing a hijab/headscarf satisfies even this higher threshold of 'essential religious practice'."