New Delhi: Hundreds of lawyers were among those who signed an open letter on the hijab ban in Karnataka, calling it an attack on the rights of Muslim women that is in “furtherance of Islamophobic violence”.
Among the more than 700 signatories of the letter are retired high court judges Anjana Prakash and Amar Saran; former Karnataka State Backward Classes Commission chairperson C.S. Dwarakanath, senior lawyers Vrinda Grover, Sanjay Parikh, Mihir Desai, activist Sudha Bharadwaj and hundreds of lawyers, law students and activists.
They said that they are “deeply concerned with” the violation of constitutional rights of young Muslim women who have been denied entry into educational spaces due to their wearing a hijab. They said that the Karnataka high court, which is hearing petitions against the ban, has chosen to proceed on an understanding linked exclusively to the right to freedom of conscience, enshrined in Article 25 of the constitution.
“However, the issue at stake here pertain not only to the rights recognized in Article 25 but also more foundationally to the Fundamental Rights of the students under the golden triangle of Articles 14, 19 and 21, read with the specific protection against discrimination in Article 15,” they said.
They also stated that this ban is “not a novel or an isolated incident, but must be acknowledged to be part of the communal polarisation in Karnataka and across the country”. They said, “In this context, the denial of entry to Muslim girls is in furtherance of Islamophobic violence, and must be critiqued in this context.”
Registering full and unconditional support to the young Muslim women in Karnataka who are protesting for their right to an education, and their religious freedom, the signatories said that “education cannot, should not, and must not be denied to anyone based on any marker of religious identity”.
The open letter says that students who profess the Hindu faith wear different markers of their faith like bindi, tilaks, vibuthi. “However, these markers have never evoked a reaction similar to what we see against Muslim students today. An educational space is where values of plurality, tolerance and respect must be cultivated, not buried. Any and all attempts to enforce cultural homogeneity strikes at the heart of the constitution and must be resisted,” the signatories said.
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The full letter is reproduced below.
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We, the undersigned, are law students, legal academics and lawyers practicing in different jurisdictions across courts in India. We are deeply concerned with, and strongly condemn the violation of constitutional rights of young Muslim women who have been denied entry into educational spaces due to their wearing a hijab. We are equally concerned by the interim order of the Hon’ble Karnataka High Court restraining “students regardless of their religion or faith from wearing saffron shawls (bhagwa), scarfs, hijab, religious flags or the like within the classroom.”. Post the interim order, we are witness to the public humiliation of Muslim students and staff, who are being forced to remove their hijab before entering schools and colleges, purportedly on instructions of the district administrations. This disrobing of Muslim girls and women in public view is inhuman, derogatory and an affront to the Constitution and amounts to the public humiliation of the entire community. We hang our heads in shame as having failed in protecting their basic right to life with dignity.
As members of the legal fraternity, we are aware that the framing of an issue gains paramount importance in the understanding of the rights at stake. The Hon’ble High Court has chosen to proceed on an understanding linked exclusively to the right to freedom of conscience, enshrined in Article 25 of the Constitution. Of course, it may be kept in mind that the Hon’ble High Court of Kerala, in Kerala High court in Amnah Bint Basheer vs Central Board of Secondary Education, found the hijab to be an essential religious practice protected under Article 25.
However, the issue at stake here pertain not only to the rights recognized in Article 25 but also more foundationally to the Fundamental Rights of the students under the golden triangle of Articles 14, 19 and 21, read with the specific protection against discrimination in Article 15.
The fundamental right to education is a well-established aspect of the Right to life under Article 21 of the Constitution. The effect of such a decision is the pushing of Muslim women out of education, and an exacerbation of the crisis of education in our country. The denial of education to women on grounds only of wearing the hijab is not a reasonable or proportionate restriction of their rights. The imposition of an absolute uniformity contrary to the autonomy, privacy and dignity of Muslim women is unconstitutional. By virtue of this women have the right to choose to wear hijab, and equally, to choose against the imposition of hijab.
The imposition of uniform in Government establishments is nothing new, and has been moulded to the syncretic tradition of our State. Muslim girls have worn hijab, and Sikh boys have worn turbans, often in the colour of the uniform. Students from other communities have worn various markers of their religion on their body along with the uniform. However, the current attack on the Muslim women’s rights is not a novel or an isolated incident, but must be acknowledged to be part of the communal polarization in Karnataka and across the country, with members of minority communities being attacked through lynching, hate speech, witch hunts and mob attacks. It must be remembered that the background within which these educational institutions have denied entry to girls wearing hijabs is one of increasing Islamophobia and violence against Muslims, including open calls for genocide, social and economic boycotts, and attacks against inter-faith couples. In this context, the denial of entry to Muslim girls is in furtherance of Islamophobic violence, and must be critiqued in this context.
We register our full and unconditional support to the young Muslim women in Karnataka who are protesting for their right to an education, and their religious freedom. Education cannot, should not, and must not be denied to anyone based on any marker of religious identity. Students who profess the Hindu faith wear different markers of their faith to school every day including bindi, tilaks, vibuthi – however these markers have never evoked a reaction similar to what we see against Muslim students today. An educational space is where values of plurality, tolerance and respect must be cultivated, not buried. Any and all attempts to enforce cultural homogeneity strikes at the heart of the Constitution and must be resisted. We reiterate that it is the right of every student to be able to gain an education free of untoward interference from the State.
It is the duty of the higher courts to breathe life into Article 25 of the Constitution. As legal professionals committed to the rule of law and upholding the dignity and liberty of all people, we reaffirm our commitment to the constitutional rights of these students to education, autonomy, privacy and dignity, and to freedom from discrimination. The Hon’ble Apex Court in Navtej Singh Johar vs Union of India [AIR 2018 SC 4321] stated:
“It is the responsibility of all the three organs of the State to curb any propensity or proclivity of popular sentiment or majoritarianism. Any attempt to push and shove a homogeneous, uniform, consistent and a standardised philosophy throughout the society would violate the principle of constitutional morality. Devotion and fidelity to constitutional morality must not be equated with the popular sentiment prevalent at a particular point of time.”
We implore all stakeholders to adhere to Babasaheb Ambedkar’s dream of constitutional morality. We urge the Karnataka High Court to take judicial notice of the public humiliation of Muslim students and staff and immediately pass necessary orders prohibiting any such derogatory practice.