The art of inflaming religious passions: the hijab controversy and the communal dividend

The female students adorning the hijab broke no existing rules, since there was nothing in the existing dress codes that prohibited them from covering their heads. The Karnataka High Court ought to have taken note of these dress codes in its hearing of the matter, writes N.D. JAYAPRAKASH.

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THE current contrived controversy over "hijab" – or to use a more appropriate phrase, the concerted move to oppose the covering of the head with a part of the prescribed uniform – was raked up in Karnataka in the last week of December 2021. The controversy originated at the Government Pre-University College for Women at Udupi (Dakshina Kannada District) when on December 27, 2021, the Principal of the College, Rudre Gowda, decided to ban students from wearing scarves in class-rooms on the specious plea that it violated the stipulated dress code. According to the Principal, "Only after December 27 [2021], they [some students] said they wanted to wear the hijab in the classroom." In the same interview to India Today, the Principal claimed that: "… for the last 35 years there was no hijab in college. We allow them to wear it but not inside the classroom. During class hours, all students are allowed in uniform with no hijab."

It is quite possible that for the last 35 years, that is, ever since the establishment of the college in 1984, no student had chosen to wear a "hijab"/scarf in the classroom primarily because it was a women's college. However, the Principal forgot to add that for the last 35 years, there never existed a dress code in the college that explicitly banned students from wearing a scarf in the classroom if they so desired. Then on what basis did the Principal arbitrarily make "uniforms with no hijab" the rule? Was it an innocent decision? Was he unaware of the sensitive nature of the issue? Or was he compelled to take such a decision by vested interests, who were intent on creating a controversy to inflame communal passions?

Also read: Support to ban on Hijab stems from lack of empathy with minorities

Dress codes followed by colleges in Dakshina Kannada

Since the said college does not seem to have its own website, it is not possible to examine the contents of the College's 'Dress Code' as stipulated by the College Development Committee in order to verify if the Principal's contention had any basis at all. Fortunately, a few colleges in Dakshina Kannada district have information in this regard on their websites. For example, Sharada Pre-University College, Mangaluru, has stipulated the following "Rules and Regulations":

"The college gives utmost priority for discipline and every one, student or staff, is bound to follow the rules and regulations of the college and maintain strict discipline.

Dress Regulations

Students should wear the prescribed uniform on all working days. The following is the uniform prescribed:Girls : Half sleeve kameez, salwar and a shawl.

Boys : Half sleeve shirt and full trousers, plain black belt with brown or black shoes. (Jeans, colour vests and low waist trousers are strictly prohibited)Students both of the I & II P.U.C. must be in uniform whenever they come to the college for any reason whatsoever, even during study holidays and until the college closes for vacation."

These "Rules and Regulations" in no way prohibit girl students from covering their heads if they choose to do so.

At the Poornaprajna Pre-University College, Udupi, stipulations regarding attire are described as follows:

"Regulations Regarding Discipline

…

5. Disorderliness of behaviour, slovenliness or indecency in regard to dress and sloppiness or scruffiness in regard to hairdo should be avoided. Pants, shirts, miniskirts, sleeveless are not allowed to girls. Jeans, T-shirts are not allowed even to boys. 'Uniform rules' are to be followed strictly."

It may be noted that these stipulations by no means impose a ban on covering the head. Does covering the head result in "slovenliness", "indecency" or "sloppiness"? Can use of a shawl or dupatta to cover the head be termed as "scruffiness in regard to hairdo"? Only "Pants, shirts, miniskirts, sleeveless are not allowed to girls"; the prohibition of donning of scarf does not figure anywhere.

At Alva's Pre-University College, Moodbidre, the requisite attire as per the "Rules of Discipline & Conduct" is as follows:

"The students are required to come to the classes/meeting /Campus Neatly dressed in Accordance with Approved etiquette. The management reserves the right to stipulate appropriate dress code."

Also read: Udupi college hijab ban: the uniform of uniformity

The exact details of the "stipulated approved dress code" have not been described anywhere on the College website. However, from photographs published on the College website, it is clear that for girls, the "stipulated approved dress code" consist of 'salwar', 'kameez' and 'dupatta'.

Alva's PU College is also proud of its alumna, who chose to cover her head.

In most other accessible websites of pre-university colleges in Dakshina Kannada District, while there are stipulations that "Students shall wear the prescribed uniform", the exact prescriptions about the type of uniform to be worn – or what may be called the 'dress code' – have not been described anywhere. The methodical way in which descriptions regarding the stipulated 'dress codes' have been erased or blocked from these websites is astonishing; it provides ample opportunity to the Management to interpret the rules regarding 'dress code' in the manner they like. It also provides ample time to them to concoct a new set of 'dress codes' to suit the agenda of the vested interests behind the present stir.

Also read: The legitimacy of hijab in public institutions: an explainer

Anyway, from the available information, it is more than evident that the permitted uniform for girl-students consisted of salwar, kameez and dupatta. If a few girls choose to wrap the prescribed dupatta around their heads, should that action be considered as violation of the 'dress code'? According to a report in the Deccan Herald:

"The girls say they are wearing headscarves willingly with no force from parents or the mosque. They wrap the shawl given along with the school uniform around their heads and shoulders and do not use any extra piece of cloth."

Karnataka government's impugned order on February 5

Under these circumstances, Principal Gowda's decision to ban those students, who chose to cover their heads even with the permitted dupatta, from attending classes was not only wholly contrary to the existing rules, but was also a decision that was totally uncalled for. The Principal's intemperate and provocative action, purportedly at the behest of the local legislator – a Bharatiya Janta Party [BJP] member, who heads the College Development Committee of the college, provided a golden opportunity to "Islamist" organizations like the Campus Front of India to fish in troubled waters. Meanwhile, a few other colleges, including co-ed ones, too began to take similar action against girl-students, who were wearing scarves.

As a result, more and more girl-students from various colleges began to protest against the discriminatory action – with some of them wearing not just hijabs but burqas from head to foot during such protest demonstrations. As a diversionary tactics, counter-protests were immediately launched by various "Hindutvavadi" groups (one of which was reportedly called Hindu Jagarana Vedike) to polarize and communalize the issue. It was neither the Indian National Congress nor the "Commies", who prodded "Hindu" students to wear saffron stoles and parade in and around colleges; BJP leaders were clearly behind these counter-protests.

When the situation began to go out of control, the Government of Karnataka, instead of taking necessary steps to speedily resolve the problem, decided to issue a notification (Government Order No: EP14 SHH 2022 Bengaluru, dated 05.02.2022), which effectively compounded the problem by mandating uniforms in all pre-university colleges state-wide, purportedly as per the prescribed dress codes in the various PU colleges.

As explained by Senior Advocate, Devadutt Kamat, who was appearing for two of the petitioners in the matter before the Karnataka High Court on February 14, the Karnataka Government, after quoting three unrelated judgments, had tried to wrongly infer that the said judgments had pronounced that "prohibition of a headscarf or a garment covering the head is not a violation of Article 25 of the Constitution." 

Thereafter, by falsely posing the question as one "relating to a uniform dress code over individual dressing choices…", the government on February 5 ordered as follows:

"… [A]ll the government schools in the state are mandated to abide by the official uniform. Private schools should mandate a uniform decided upon by their board of management. 

In colleges that come under the pre-university education department's jurisdiction, the uniforms mandated by the College Development Committee, or the board of management, should be worn. In the event that the management does mandate a uniform, students should wear clothes that are in the interests of unity, equality, and public order." 

Also read: Ban on hijab flies in the face of legal precedents

The truth is that the girl students, who chose to cover their heads, never broke any existing rules; there was nothing in the existing dress codes that prohibited them from covering their heads with the permitted dupatta if they choose to do so as has been already noted above. Therefore, the charge that they were violating the existing "uniform dress codes" and making "individual dressing choices" is patently false. Neither the concerned colleges nor the Karnataka Government has produced a shred of evidence to prove that the concerned students had actually violated the existing uniform dress codes prescribed by the concerned colleges. On the contrary, the utter failure on their part for the last 45 days to make public the contents of the hidden uniform dress codes more than proves that they are the ones who are most desperate to conceal the facts.

(It may, however, be noted that any new uniform dress code that the concerned colleges seek to introduce would only become mandatory after one year of its introduction. This procedure has been clearly stipulated in Rule 11(2) of the Karnataka Educational Institutions (Classification, Regulation and Prescription of Curricula etc.,) Rules, 1995 (p.118) of the Karnataka Education Act, 1983.)

It is highly regrettable that a settled matter is being debated over and over again. Nearly a decade ago, the Board of Governors of the Kendriya Vidyalaya Sanghatan [KVS], in its 92nd meeting held on May 18, 2012 had approved the adoption of a new uniform design for students of KVS from Standard I to Standard XII. The Times of India, on June 16, 2012 had reported the outcome of the meeting as follows:

"The Kendriya Vidyalaya Sanghatan (KVS) has introduced change in the dress code of students. Muslim girls studying in KVS will be allowed to wear head scarves in school."

The approved design and stipulations regarding uniforms were subsequently communicated to all KVS schools via letter dated July 3, 2012.

The Board of Governors' decision to allow Muslim girl-students to wear scarves is applicable to all KVS schools across India and abroad. Despite there being two KVS schools in Dakshina Kannada district (one of which was founded as early as 1969) and despite the fact many of the managing committee members of the colleges (where the hijab controversy was raked up) being aware of the prevailing dress code at the said KV schools, conscious attempts were made by some of those members to take undue advantage of the Karnataka Government Order dated February 5, 2022 to act in a polarizing way. The Indian Express in its editorial dated February 8 made scathing remarks against the unbecoming conduct by members of the management of one such college as follows:

"The discriminatory logic of such a polarising campaign was evident in a Kundapura college, which allowed protesting women students inside the campus but herded them into separate classrooms. The Indian republic's success in resolving the competing claims on public spaces and resources from various communities might be up for debate, but it has never been guilty of sanctioning a segregation of spaces. Separate can never be equal in a democracy…. Children at the barricades of their schools and colleges facing off over identity, being herded into separate rooms, doesn't deepen democracy, it aggravates many a risk."

Also read: Interpreting hijab: why only through 'essential practices' doctrine?

The ugly incident that the said editorial was referring to was the unacceptable decision of the management of the co-ed Government Pre-University College, Kundupura, on February 6 to allow the scarf-donning students into the college campus but directing them to sit in a separate classroom, which is actually tantamount to enforcing apartheid. This appalling event was the culmination of a series of humiliating experiences that the students who were wearing scarves were subjected to for over a month. As a result, the aggrieved students were left with no recourse other than to approach the High Court to seek justice.

How the Karnataka High Court has dealt with the matter so far

On February 7, five different writ petitions were filed before the Karnataka High Court against the Karnataka Government's order dated February 5. The single-judge bench of Justice Krishna S. Dixit, who heard the matter at length on February 8, declined to stay the said Government Order or pass any other order even without verifying if there was a prima facie basis for the government to pass such an order. Instead, Justice Dixit urged the Chief Justice of the high court to constitute a larger bench to hear the matter.

As a result, the Chief Justice constituted a three-member bench consisting of the Chief Justice, Justice Krishna Dixit and Justice J.M. Khazi and heard the matter on February 10. Again after a lengthy hearing, the Court declined to stay the Government Order, which effectively meant that the restrictions that the principals had illegally imposed on the petitioners six weeks ago from entering the classrooms with covered heads would continue until further orders.

From the Interim Order passed in the matter on 10.02.2022 (in Writ Petition No. 2880 of 2022, etc.) it is evident that the High Court did take note that the crux of the impugned Government Order was that "no girl student shall wear the hijab (headscarf) whilst in the classrooms." (Para 1) The Court also took note of the submission made the Government Counsel that "what uniform should be prescribed by the institutions is left to them." (Para 6). However, on the basis of these preliminary observations, the Court sadly jumped to conclusions that prima facie there appeared to be nothing wrong in the said Government Order. As a result, the Court unhesitatingly passed the following interim directions:

"10. …Pending consideration of all these petitions, we restrain all the students regardless of their religion or faith from wearing saffron shawls (Bhagwa), scarfs, hijab, religious flags or the like within the classroom, until further orders. 

11.We make it clear that this order is confined to such of the institutions wherein the College Development Committees have prescribed the student dress code/uniform."

Also read: Karnataka High Court's interim ban on students from wearing any religious attire is in the teeth of Article 25, counsel tells bench

The Court ought to have examined the 'dress codes' prescribed by the College Development Committees prior to December 26, 2021. If it had, it would have become amply evident to the Court that the petitioners had in no way violated those rules. Has the Government of Karnataka brought on record copies of all the 'dress codes' prescribed by the various College Development Committees prior to December 26, 2021 in order to enable the Court to verify if the petitioners had violated those rules? No, it has not.

For passing any fair judgment in the matter, the 'dress codes' prescribed by the College Development Committees prior to December 26, 2022 have to be brought on record. The Interim Order would effectively be tantamount to letting their petitions become infructuous.

[The story will be updated as and when hearings are in progress or completed.]

(N.D. Jayaprakash is with the Delhi Science Forum. The views expressed are personal.)