The row over wearing hijab in educational institutions in Karnataka has brought back into focus a case on the “scope and ambit” of religious freedom, which has been pending before a Constitution Bench of nine judges for two long years.
The last order in the case is dated February 17, 2020. It was ordered to be listed again the next day. The Supreme Court website’s trail on hearing dates of the case ends there before COVID-19 struck. Meanwhile, the then Chief Justice of India S.A. Bobde retired, along with three other judges — Justices R. Banumathi, Ashok Bhushan and R. Subhash Reddy — on the nine-judge Bench. Justice Mohan M. Shantanagoudar is no more.
The other judges on the Bench still serving are L. Nageswar Rao, S. Abdul Nazeer, B.R. Gavai and Surya Kant. Justice Rao’s tenure ends on June 6, 2022.
The reference of the case titled Kantaru Rajeevaru vs. Indian Young Lawyers Association to the nine-judge Bench emanated from the review of the Sabarimala case in which the top court upheld the right of women of menstrual age to enter the famed temple to offer worship.
The court, instead of directly answering the review, expanded its ambit and referred questions of law on religious freedom across faiths to a larger Bench. On February 10, 2020, the nine-judge Bench led by the then Chief Justice Bobde upheld the Review Bench’s decision to refer the questions of law to a larger Bench and framed seven questions.
The seven questions pending an answer from the nine-judge Bench are: 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 of the Constitution and rights of religious denomination under Article 26; Whether the rights of a religious denomination 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); Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL?”
On Thursday, Fathima Bushra, a student of Government P.U. College in Karnataka represented by senior advocate Kapil Sibal, urged Chief Justice of India N.V. Ramana to place before the nine-judge Bench her petition challenging her “debarment” from attending regular classes for wearing hijab.
She argued that her petition raised urgent questions about “essential” religious practices of Muslims, who constitute 18% of the population.
She said the row over hijab should not be seen by the court as a solitary incident but “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 Supreme Court and other courts in the country”.
“These events include the Citizenship (Amendment) Act, 2019… violence and riots targeting those protesting against the Act, virulent protests against Muslims, who on account of lack of adequate mosques in Gurugram, were offering prayers in open areas duly demarcated by the government/authorities for this purpose, 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’,” Ms. Bushra said in her petition.
Ms. Bushra asked why “something as innocuous as wearing of a hijab by a Muslim girl student has been turned into a communal issue of such magnitude that the State government had to shut down schools and colleges across the State of Karnataka till the weekend”.
She has challenged the Karnataka government’s order of February 5 directing students to wear the uniforms prescribed by their educational institutions.
“A Muslim girl pursuing her education wearing a hijab/headscarf offends no right of any person and militates against no State interest… Petitioner does not wear the hijab as a form of any political symbolism or to intimidate, heckle or belittle her fellow classmates or any other person,” she argued, saying restrictions were “bound to have an impact on the rights of Muslim women across the country.