New Constitution Bench has a tough task to solve the impasse
BY SUSHIL KUTTY
The day after much of the dust settled on the Supreme Court's split verdict on the hijab, things are falling into place for
a better understanding of the verdict. One, it has become clear that after failing with the essential religious practice
(erp) as the raison d'etre for the ‘hijab' in classrooms demand, advocates for the hijab petitioners had picked on “hijab
is a matter of choice” to deliver them the goods. And this has become the biggest defence of the hijab after the split
verdict, something Justice Sudhanshu Dhulia highlighted in his divergent verdict which trashed and squashed the
Karnataka high court verdict.
Two, Justice Sudhanshu Dhulia is a hero to 99 percent of the minority Muslim community, and a mascot for all the
“secular” defenders of India's vast diversity and plurality; people who believe that minorities have the first right on the
national resources, and are convinced, after the Supreme Court's split verdict, that the majority Hindus had broken
trust with the minority Muslim community.
Justice Dhulia in his verdict wanted the trust restored and the hijab (re-)introduced in classrooms with all the fanfare
that comes with the redemption. But for Justice Ramesh Gupta and his portion of the split verdict, the Hindu of India
would have gone to bed October 13 night with guilt casting a shadow on his conscience.
Justice Gupta and Justice Dhulia are poles apart, and it's a wonder they shared a single bench. In Justice Dhulia's
reckoning, what use educational institutions, if education becomes the casualty of a government order? For him, the
key issue was the key to the classroom for girls who face “a lot of difficulties” pursuing education. “Are we making her
life any better with the hijab ban?” Justice Dhulia asked, clearly not subscribing to the idea that sacrifices have to be
made to fight evil.
And the hijab is not only regressive but also oppressive. That being said, far too many progressives are kosher with
hunting with the hounds and running with the hare. The fact of the matter is, if the banned Campus Front of India
hadn't made hijab a hurdle in the way of education, slain Al Qaeda terrorist Ayman Al-Zawahiri wouldn't have got the
chance to preach to India and threaten with dire consequences.
Over the years, with or without the hijab to come in the way, conservative Muslims were placing a premium on
educating their daughters and not permitting the hijab spoiling to pick up a fight. The winds of change are supported by
statistics. An increasing number of Muslim women have been enrolling for higher education, and the Karnataka high
court order hardly made a dent in this progressive trend. The Gross Attendance Ratio (GAR) of Muslim girls in pre-
university and varsities in Karnataka rose from 1.1 percent to 15.8 percent during the decade 2008-18. The
corresponding figures for across India was 6.7 percent to 13.5 percent.
Also, Justice Dhulia shouldn't have jumped the gun: Other than the five petitioners, who made the case against the
Karnataka government order on hijab a matter of education versus no education, none of the scores of other Muslim
PUC girl students dropped out of school/college. No PUC student asked for a transfer certificate to move to a “hijab-
friendly school”. At the college level, however, 110 students sought and were given transfer certificates.
But, when it came to choosing between education and hijab, the preference in each case was always “education
first”, irrespective of community influence/pressure. And “asking (the) schoolgirl to take off (the) hijab is invasion of
privacy and dignity; (and) violative of Articles 19(1)(a)and 21” never crossed the mind of these girls. Also, all the pre-
university Muslim girl students, except the “Hijabi five” of Dakshina Kannada and Udupi sat for the final exam held in
April 2022.
Finally, Justice Dhulia also spoke of the Supreme Court and the Bijoe Emmanuel case. Bijoe belonged to the Jehovah's
Witness, a Christian sect so few in number that they wouldn't register in the population register, unlike Indian Muslims, who
number substantially in over 200 districts across India. The larger Supreme Court bench would definitely take a call on all
aspects raised by Justice Dhulia including Bijoe Emmanuel and his relevance in the hijab case. (IPA)
