THE People’s Union for Civil Liberties (PUCL), Karnataka, has done a yeoman service by bringing out a timely interim study report on the impact of hijab ban in Karnataka’s educational institutions, the challenges against which are currently being heard before the Supreme Court, in the form of Special Leave Petitions against the Karnataka High Court judgment, which was in favour of the ban.
Last week, the Supreme Court bench of justices Hemant Gupta and Sudhanshu Dhulia asked the counsel for the petitioners, Sanjay Hegde, whether the right to practise religion can be taken to school with uniform. The question arose because the court is yet to resolve the issue whether wearing hijab is an essential religious practice (ERP). Even if it is conceded as an ERP, the bench wanted to know whether a religious practice could be permitted inside a classroom which prescribes a uniform. But the petitioner’s counter-question remains unanswered: Does a student’s freedom of expression include right to choose her dress.
One of the petitioner’s counsel, Devadatt Kamat put the question succinctly to the bench, asking whether the State should be accommodative enough by allowing the student to wear hijab in order to protect her right to education, guaranteed under Article 21A of the Constitution. But the question, unfortunately, drew an unexpected repartee from the bench which asked whether the right to dress also includes the right to undress.
As the petitioners’ plea to refer the petitions to a Constitution bench remains to be addressed by the two-judge bench, the PUCL’s interim report has clearly brought out how the right of the students to education was grossly violated in the state in the wake of the hijab controversy. The ban on wearing the hijab was implemented by the college authorities hastily, arbitrarily and without providing any prior notice, the report mentions.
The students had a legitimate expectation that they would not be suddenly and arbitrarily prevented from attending classes, that too just two months before the examination. The state government belied this expectation, though it was duty bound to protect the right to education of all its students without discrimination of any kind, the report emphasises.
Under Article 41, the state shall within the limit of its economic capacity and development, make effective provision for securing the right to education among other rights. In the case of the hijab issue, it was disconcerting to see that the State of Karnataka completely ignored its constitutional obligation in its single minded focus on ensuring that the hijab was prohibited in colleges, the report concludes.
The value of the PUCL report lies in compiling the many incidents of discrimination against Muslim women students, both before and after the Karnataka High Court’s judgment upholding the ban on wearing hijab in the classrooms. It is most likely that the report can strengthen the contentions of the petitioners before the Supreme Court bench hearing the matter.
The Leaflet has covered the hijab controversy extensively between January and April.
Lack of propriety
The appointment of incumbent judges, before their retirement, as chairpersons of other bodies, has come under critical scrutiny in recent times. In a recent scholarly paper, Madhav S. Aney, Shubhankar Dam and Giovanni Ko, have found that incentives to pander have a causal effect on judicial decision-making. This, according to them, suggests the presence of corruption in the form of government influence over judicial decisions.
It is, therefore, of concern that the Madras High Court Chief Justice, Munishwar Nath Bhandari, who retires on September 12, has been appointed as the Chairman of the Appellate Tribunal under the Prevention of Money Laundering Act (PMLA), just four days prior to his retirement. The post of the Chairperson of the Tribunal was vacant since September 2019. That the post remained unfilled since then, despite the availability of many eligible retired Judges, only adds to one’s curiosity.
Interestingly, the former Union Finance Minister, late Arun Jaitley had once stated that pre-retirement judgments were influenced by post-retirement jobs. The present Union Minister, Nitin Gadkari, when he was the BJP president earlier, had suggested a two-year cooling-off period before a retiring judge is appointed to commissions or tribunals.
In March, The Leaflet covered the controversy over the appointment of the then Delhi High Court Chief Justice, D.N.Patel as TDSAT Chairperson close on the heels of his retirement.
In an article The Leaflet published in 2020, Justice Yatindra Singh, retired Chief Justice of Chhattisgarh High Court and now a senior advocate at the Supreme Court, has proposed amendment of enactments which mandate such appointment of judges after their retirement to protect their independence.
Highlights from our last week’s coverage
Why we have to be wary of calls for Indianisation by Dr.M.P.Raju completes the four-part exchange of views between him and Prof.(Dr.) Jose P. Verghese who argued in favour of Indianisation in the first two parts. Readers may recall that Dr.Raju’s original article against Indianisation, published by us on January 15, was provoked by the Supreme Court judge, Justice S.Abdul Nazeer’s statement, made at a function organised by the Akhil Bharatiya Adhivakta Parishad (ABAP) emphasising the need to Indianise the legal system in tune with the ancient Indian systems. Subsequently, the former CJI, N.V.Ramana also endorsed the call for Indianisation for different reasons, although he did not make them clear enough.
Studies have repeatedly shown that having a non-heterosexual orientation makes it difficult to access healthcare. In a slew of recent orders, the Madras High Court last year issued guidelines to make access to healthcare and alleviate discrimination, including directing the government to publish a dictionary that makes referring to queer people more inclusive in Tamil. The same has also been published in the official gazette. From these proceedings, the National Medical Commission was also guided to ban conversion therapy, which it has also done: conversion therapy is now deemed as professional malpractice under the Indian Medical Council (Professional Conduct Etiquettes and Ethics) Regulations, 2002.