India dispatch: ‘hijab row’ lands at SCI, physical court hearings resume as Covid wanes, and a high court justice resigns
© JURIST (Neelabh Bist)
India dispatch: ‘hijab row’ lands at SCI, physical court hearings resume as Covid wanes, and a high court justice resigns

From New Delhi, India Chief Correspondent Neelabh Bist reports for JURIST on recent legal developments surrounding Karnataka state’s “hijab row,” removal or reduction of COVID-19 restrictions and the resignation of a high court justice who became nationally notorious for her judgment in a child sexual assault case.

The Karnataka High Court is currently tending to a controversial question—the prohibition on Muslim women wearing hijab while attending state-run educational institutions.

Several petitions have been filed in the Karnataka High Court challenging the so-called “hijab ban” in colleges across the state. During previous hearings of the matter, a three-judge bench of the court requested the state to reopen the educational institutions as soon as possible observing that resumption of classes is in the best interest of the students.

However, through an interim order on Thursday, the court ordered students to refrain from wearing any religious attire in colleges, regardless of their faith, while it reviews the case. The court also specifically mentioned in its order that the contents of the order are confined only to those institutions where the college development committees have prescribed a uniform dress code. The counsels for the petitioners argued before the court that this order can result in a temporary suspension of fundamental freedoms. The court responded that these are just temporary measures being taken until the case is concluded to restore peace and tranquility in the state.

A series of petitions were then filed at the Supreme Court challenging the Karnataka High Court’s interim order. The petitioners feared that such an order can have far-reaching consequences and will affect other faiths too. For example, Sikhs men often wear turbans to schools as part of an accepted nationwide accommodation afforded to them for as long as modern schools have been in existence. In responding to the request for an urgent hearing on the petitions, Chief Justice Nuthalapati Venkata Ramana instructed the petitioners to “not spread the issue at a larger level” assuring that “the Supreme Court is watching and knows what is going on in the State of Karnataka.” The Court further promised that it will intervene, examine and protect the constitutional rights of those affected, but at an “appropriate time” after the Karnataka High Court has had an opportunity to adjudicate the matter.

Along similar lines, a new public interest litigation was also filed at the Supreme Court seeking directions to the central and state governments to implement a uniform dress code system in all registered and state-recognized educational institutions across the country. The petition submits that a common dress code will help in curtailing the menace of casteism, communalism, classism, radicalism, separatism and fundamentalism in the country and will promote a more positive educational environment.

The hijab ban controversy has livened up a series of discussions and debates across the country with some believing that a balancing act is required in the state’s endeavor to ensure uniformity in educational institutions and others arguing that it is a direct violation of Article 25 of the Constitution of India, which guarantees every citizen in the country the right to profess, practice and propagate religion subject to public order, morality and health.

In other news, as COVID restrictions ease up across the country as a consequence of a significant decline in case-count and positivity rate across states, the Supreme Court is resuming physical hearings twice a week—Wednesday and Thursday. A hybrid mode of hearing will be held for the rest of the week. The decision was issued on behalf of the chief justice, in consultation with the Committee of Judges, by the secretary general of the Supreme Court.

However, the Delhi High Court and district courts have decided to continue restricted physical hearings until the end of the month and instead commence complete physical hearings beginning March 2. The Delhi High Court also stated that the courts may only in exceptional circumstances permit hybrid/video-conferencing hearings post complete resumption of physical proceedings. This decision of the Delhi High Court complements that of the Delhi local government, which lifted the ban on the physical functioning of both government and private offices enabling them to function with 100 percent capacity. Additionally, schools and colleges in the national capital are also set to reopen.

Following suit, courts in the state of Gujarat have also decided to resume physical hearings beginning February 21. The Administrative Committee of the Bombay High Court, in consultation with the Additional Commissioner of Brihanmumbai Municipal Corporation and secretary of state of the health department, has also decided to resume physical hearings beginning Monday in view of the improving COVID-19 situation in the state of Maharashtra.

Another prominent development in the Indian legal circle is the resignation of Justice Pushpa Ganediwala of the Bombay High Court (Nagpur Bench), the now-infamous author of the skin-to-skin judgment in connection with the Protection of Children from Sexual Offences Act (POCSO Act).

Ganediwala’s January 2021 judgment invited a lot of criticism for stating that direct skin to skin contact was necessary for committing the offence of sexual assault under the POCSO Act. Since the accused had groped the 12-year-old victim through her clothing, Ganediwala reasoned that the offense did not constitute sexual assault under POSCO but rather constituted the offense of outraging a women’s modesty under § 354 of the Indian Penal Code (IPC). While the conviction in that case was upheld under the IPC, the accused was acquitted of all crimes and imprisonment under POSCO. This meant that rather than facing three-to-five years of imprisonment under POSCO regulations, the accused was facing imprisonment between one-to-five years under the IPC.

The judgment was initially suspended and later reversed by a three-judge bench of the Supreme Court upon appeal by India Attorney General Kottayan Katankot Venugopal. In reversing the judgment, the Court called Ganediwala’s interpretation requiring skin-to-skin contact “narrow and pedantic” leading to an “absurd interpretation,” and that what matters for the offence of sexual assault is the “sexual intent” with which the contact is made.