Justice Unveiled as Courts Show Divergent Approaches to Secularism in India

The Kerala High Court. Credit: Wikimedia Commons

The Kerala High Court. Credit: Wikimedia Commons

New Delhi: On the question of the right of Muslim women to wear a headscarf and full sleeves while appearing for a public examination, the Kerala High Court and the Supreme Court have adopted divergent approaches.

On July 24, the Supreme Court bench comprising Chief Justice H.L. Dattu, Justice Arun Mishra and Justice Amitava Roy refused to entertain a petition filed by the Student Islamic Organisation of India (SIOI) which was aggrieved by the Central Board of School Education’s notification of July 9, 2015.

The notification prescribed a dress code for candidates appearing at its All India Pre-Medical Test, (AIPMT) which was being reconducted under the orders of the Supreme Court, on July 25.

The refusal of the bench resulted in the senior advocate, Sanjay Hegde, who represented the SIOI, requesting the court’s permission to withdraw the petition, which was granted.

The permission to withdraw the petition means that the Kerala High Court’s verdict, delivered by Justice Vinod Chandran, in Nadha Raheem vs CBSE, on July 21, (WP [C] 21696/2015), [thanks to which reproduced the order] was applicable to the facts of that case, and remained undisturbed. It also means that Chief Justice Dattu’s uncalled for observations on the issue, while hearing the SIOI’s petition, will have no impact on the High Court’s order.

In Nadha Raheem, the High Court asked the two Muslim petitioner-girls who challenged the dress code to present themselves before the invigilator half an hour before the examination, and subject themselves, to any acceptable mode of personal examination, carried on by an authorised person of the same sex. It also asked the CBSE to issue general instructions to its invigilators to ensure that religious sentiments are not hurt, and at the same time, ensure that discipline is not compromised. The High Court did not deem it necessary to question the CBSE’s dress code.

Perhaps not satisfied with this limited order of the High Court, the SIOI approached the Supreme Court for suitable directions to the CBSE to modify its dress code, so as to exclude the Muslim girls from its purview.

In SIOI vs CBSE, three practising Muslim women, whose religious beliefs require them to be attired in full sleeve clothing and scarfs whenever they appear in public view, were registered to appear in the rescheduled AIPMT. The petitioners sought a direction to the CBSE to exempt them and other such similarly placed candidates from application of Rule 6(c) and 7 (a) of the notification, as the same are violative of the the fundamental right of the petitioners guaranteed under Article 25 of the Constitution to practise and profess a religion of their choice.

Rule 6 listed eight categories of items which the candidate is prohibited from bringing at the examination centre. Thus Rule 6(a) barred stationery items, 6(b) restricted bringing of communication devices like mobile phones, Bluetooth, earphones , health band etc., and Rule 6(c) included other items like wallet, goggles, handbags, hair pin, hair band, charm/tabeez, belts, cap, scarf etc.   Rule 6(d) barred ornament like ring, bracelet, earrings, etc; Rule 6(e) to (h) mentioned watch, camera etc., metallic items, eatable items, water bottles, and any other items which could be used for unfair means and for hiding communication devices like mobile, camera, etc.

Rule 7 specified the dress code, which the candidates have to observe while coming for appearing in AIPMT examination. Rule 7(a) said they should wear light clothes with half sleeves shirt/t-shirt/kurta not having big buttons, brooch or any badge, flower and trouser/salwar etc. and Rule 7 (b) asked them to wear open slippers and not the shoes.

The fundamental right of the petitioners, under Article 29(2) of the Constitution of India, to be not denied admission in an institution maintained by the State on the ground of religion, was also cited. If on account of the dress code, the petitioners were not able to even write the entrance exam for admission, the petitioners would obviously not be entitled for admission, the SIOI had argued.

The dress code was also challenged as discriminatory and violative of Article 14 of the Constitution, because it ends up preventing those who are religiously inclined and follow the mandate of their religion to be attired in a certain manner from writing the entrance exam.

The petitioners approached the Supreme Court under Article 32 of the Constitution because the Supreme Court alone could grant relief sought for since no High Court can interfere with the process of conducting the exam which is being conducted as per the orders of the Supreme Court dated 15.6.15 in WP (c) 298/2015.

On May 3, the AIPMT was conducted by the CBSE. As news reports surfaced that micro sim devices were fitted to vests/undergarments with wires and Bluetooth devices of some of the candidates through which answer keys were communicated to them, during the conduct of the examination, the Supreme Court, on June 15, in Tanvi Sarwal vs. CBSE, cancelled the AIPMT conducted on May 3, and ordered re-examination.

The petitioners said they had no objection to being frisked by lady staff or other security measures, but the complete bar on wearing their religiously mandated clothing is too broad a measure, which is not necessary to achieve the objectives of the CBSE.

Chief Justice Dattu’s observations on July 24 that “if you appear in an examination without a scarf, your faith will not disappear” and “faith is not connected to wearing a particular type of clothes”, are generally seen as very insensitive to the religious sentiments of minorities.

Justice Dattu’s further remarks that the “plea is nothing but an ego” and “that it is a small issue” stand in contrast to what Justice K.Vinod Chandran observed while hearing the case on July 21.

Justice Chandran said: “In our country with its varied and diverse religions and customs, it cannot be insisted that a particular dress code be followed failing which a student would be prohibited from sitting for the examinations.”

On July 24, the Kerala High Court’s order was brought to the attention of the Supreme Court. Perhaps the petitioners wanted similar relief to Muslim girls, appearing elsewhere in the country, thus modifying the CBSE’s insensitive dress code.