Puzzling To Say Hijab Is Inconsistent With Freedom : Professor Farrah Ahmed On Karnataka High Court's Judgment

It is very puzzling to hold that wearing of hijab is inconsistent with freedom, said Ms.Farrah Ahmed, Professor in Melbourne Law School, Australia, while speaking at an online discussion on the Karnataka High Court's judgment in the hijab case."For me, it is very puzzling for anybody to say that wearing a hijab or wearing a headscarf is inconsistent with your freedom", she said. While commenting that she is "skeptical" about the State's argument of emancipation, she added, "If you really thought, okay these students are oppressed, then what you should be doing is, you will make sure that they get a fantastic education so that they have a right to exit".Professor Ahmed, whose book "Religious Freedom under the Personal Law System" was published by Oxford University Press in 2016, also said that the High Court has failed to consider the state action in the context of arbitrariness and discrimination and there was no proper enquiry of the State's power to issue the Government Order. "The Court talked about arbitrariness and discrimination in one breath. Discrimination was conflated with arbitrariness, which was a big mistake", Ms.Ahmed said.Professor Ahmed also said that the approach of the Court is against the new thinking in education which welcomes diversity as a desirable trait."There is an analogy in the judgment to classrooms, prisons and war rooms. As an educator, you really wonder, what vision of education is outlayed there. The new vision of education is that diversity is good for cognitive reasoning and for learning. The suggestion of "qualified public places" is also jurisprudentially troubling", she said.Ms. Shahrukh Alam (Advocate, Supreme Court) and Mr. Gautam Bhatia (Constitutional Scholar) were the co-panelists.The excerpts from the discussion are given below :No inquiry into cogent groundsShahrukh Alam: Rather than inquiring into whether the cogent grounds are good enough, whether there is a rational nexus, whether there is proportionality, the whole debate has shifted to why I can't just agree to not wear it. The second question is about even if you are insisting on a particular uniform in particular spaces in particular time, what would you accommodate and what would you not accommodate with it. And in this case, this enquiry has again not been done, to my mind.Farrah Ahmed: "The first question should be by what authority has the government done this, by what authority have they made this decision, by what authority has a state-funded educational institution has taken this action. This is not the question the court focused on. This is actually very common because of the over-representation and over-emphasis on constitutional law issues as compared to administrative law issues because I think administrative law focuses exactly on those questions- by what authority is the State acting, the public body acting. In this particular case, I think the only way to understand whether the educational institutions actually have authority to do what they are doing, and in this particular case, to create the prohibition of the hijab, is to look very closely at the Karnataka Education Act. What I think is problematic is that that entire enquiry gets very, very little attention. If the framing had been on that particular enquiry, the result had to be different. Because then you ask the government and the colleges by what authority are you undertaking these actions. They say that the government issued this government order and the government order we have authority to issue under the Karnataka education act. But if you look closely at the Karnataka education act , not something that the court in my view did at all, you get a really clear sense of what the purposes of that act are. If you read it closely, if you read it contextually, you have in the act these references to the composite culture of India, there is actually a prohibition not just on religious discrimination but on anything which wounds one's religious feelings, which amounts to religious propaganda. It goes even further than just generally saying that there should not be any discrimination. So when I look at this act, it is very clearly an act that has amongst its purpose the promotion of inclusive, sensitive, tolerant education. An education that is also focused on the needs of the more vulnerable members of the society. There is a section of the act that actually says that the government is obliged to pay particular attention to promote the education of the weaker sections of the society- the students who are affected by this government action probably would fall into that group. So you have these purposes set out under the act and you have administrative law rules saying that any government action has to be in conformity and in furtherance of these kinds of purposes and the power to issue directions that the government is claiming to have under this act is only in so far as those directions confirm with furthering the purposes of the...

Puzzling To Say Hijab Is Inconsistent With Freedom : Professor Farrah Ahmed On Karnataka High Court's Judgment

Mehal Jain

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