Submitted under Internship under Legal Specs by Mr. Himanshu Ranjan from Christ University.
It was not long since the Muslim schoolgirls started a pro-hijab movement in the Udupi district of Karnataka opposing the move by school authorities proscribing hijab in classrooms where uniform is prescribed that we witnessed an anti-hijab movement in Iran erupt after the custodial death of a 22-year-old Mahisi Amini who had been detained by Iran's morality police for not wearing hijab properly.
From a peripheral view, these two instances might seem ideologically poles apart but there is a common thread that links the two and that is every individual’s innate yearning for freedom and the right to live one’s life on one’s own terms.
India has been at the receiving end of criticism for the rising crimes against minorities and this whole issue has added fuel to fire. In a country where there is already a feeling of insecurity in the Muslim community, a prohibition on hijab could be perceived as an attack on its identity and as an attempt to further marginalise it. The state, however, has defended itself by asserting that it has not decided to disallow hijab but has delegated the power to individual institutions to make this determination. Even the interim order of the Hon’ble Karnataka High Court seems secularistic wherein it forbade the wearing of any religious symbol, be it bhagwa or hijab, though a negative one.
Therefore, several concomitant issues are worth being discussed. First, the efficacy and overall validity of the ‘Essential Religious Practice’ test in itself. When there are multiple religious texts and multiple interpretations of each text available, which is to be believed is a question and whether judges of a secular state functioning in the capacity of theologians is a matter of judicial overreach or not. Second, the spirit of the Indian constitution that promotes pluralism and tolerance, is it endangered by a mere code of discipline. Third, India is still a very conservative society and the literacy rate among the female population is significantly less than that among the male population, many girls in Karnataka would lose the opportunity to get education if they aren’t allowed to wear hijab. So, even though a symbol of patriarchy and objectification of women, it seems a necessary evil for the emancipation of women.
The Doctrine of Essentiality, a covert fiend
A religion is not just a structure that rests on a certain n number of pillars called integral practices but a universe in itself, which is a concoction of different practices, some followed by one sect of people and some by the other and therefore, no individual can say that his version is the ultimate gospel and consequently we have diverging and sometimes contradictory opinions on same matters amongst the scholars of that religion itself. Hence, it is a misguided assertion that one particular practice is integral and the other is not as religion has to be seen in totality and not in bits and pieces where the pick-and-choose model could be applied.
Also, Article 25 protects religion in the form of beliefs, and beliefs are individualistic. The use of the word ‘conscience’[in Article 25] corroborates the intention of the framers which is to make the right to religion individual-centric rather than community-centric, therefore even if the community identifies something to be non-integral but if that individual thinks otherwise, the constitution has to provide for this accommodation as long as it does not violate the law of the land.
Moreover, when the same thing could be adjudicated on the parameters of the constitution, why should the judges disguise themselves as the clergy. For instance, if the Supreme Court had to declare the practice of triple talaq unconstitutional, why did it go into its essentiality to the religion? Was the world’s lengthiest constitution silent that the judiciary had to look into religious books for the answer? Why couldn’t it simply call the said practice violative of Article 14, even if it was integral. Integral or non-integral, how does it even matter when looked at from the lens of the constitution? This is perhaps because the concept of religion intrigues every one of us so much that we cannot override it. Furthermore, the judges must understand that religions are the edifices of the past and thinking that they might somehow reform them is a wild goose chase which at best be avoided. Let it remain a lane forbidden, for the better.
Hijab, the manifestation of expression
Young Huma was very excited to study science in her pre-university as she had always wanted to work in ISRO and bring laurels to her country. Moreover, she was the youngest and the only girl in her family who was allowed to study but there was a condition; she could only attend classes provided that she covered her hair. The order of the authority was a slap on her ambitions as it forbade her to wear hijab. She then asked herself, is this the country she was promised to live in, by the framers of the constitution? It was the slaying of a future scientist’s ideas, who knows what innovations she would have brought in, had she been allowed to study.
The above narration precisely sums up why she deserves a chance to study, if not for her, for the larger good of the country itself! What goal did the institution achieve by disrobing her? A delusional secularism? Mind you, this is a country that celebrates plurality and not some constipated sense version of secularism. In the world of liberalism do we wish to keep the future of this country in fetters? Whose collective conscience are we satisfying here is a question that needs to be raised.
The last we heard was that one cannot renounce one’s fundamental rights. Authorities inebriated with power are perhaps unaware of this fundamental nature of the fundamental rights. Asking someone to leave her fundamental rights outside the premises of the so-called ‘temples of education’[schools] is nothing but a sheer mockery of the constitutional spirit
Article 19 of the constitution of India[freedom of speech and expression] allows her to express her identity. There is no valid rationale to disallow her of this expression. Article 21 guarantees her the liberty to exercise her choice and article 25[freedom to religion] confers her the right to manifest her beliefs in her God[in the form of hijab in the present case].
Before coming into the issue of essentiality. Even if it is proved that hijab is non-integral to Islam, the state cannot stop her as it is her choice. Even if 25 fails, the doors of 19 and 21 are wide open.
Here is an instance to show why judges trained in modern law should recluse themselves from entering into the forbidden territory of theology. The Hon’ble Karnataka High Court had used Surah 24 Ayat 31 of the Holy Quran to refer to hijab. It then went on to read it along with Surah 2 Ayat 256 which disallows compulsion in matters of faith. The High Court construed these two verses to reach the conclusion that whatever is stated in Surah 24 Ayat 31 is only directory because there is an absence of prescription of penalty for not wearing hijab and compulsion is proscribed and therefore hijab is not an essential religious practice in Islam. However, there are several other interpretations of Verse 256 which contradict the High Court’s interpretation but discussing them will be hypocritical of us as we have asserted that courts getting themselves involved in interpretations of religious texts is a matter of Judicial overreach.
Finally, we live in a time where duties are stressed as PM Modi in his address to the nation on Azadi ka Amrit Mahotsav declared five pledges for 2047, one amongst them is to promote unity and fulfiling our duties and rightly so. Even Article 51A(e) of the Indian Constitution imposes upon us as fellow citizens a duty "to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women”.
In fine, there are certain doubts that must struck our conscience, have we become so intolerant as a society that we have a problem with a girl covering her head? Have we become so polarised as a country that we cannot stand the sight of the manifestation of different faiths? Today it is discrimination based on choices, tomorrow, the reason might differ. The question is, if we allow this blatant dance of authoritarianism and annihilation of individual rights to become a precedent, we would be left with nothing but the reminisces of democracy and the constitution.
Hijab, the grey shade of it
Is hijab really a choice? In a conservative and highly religious country like India, calling a sign of patriarchy and objectification a choice is a disservice to the women fighting in Iran. A 10 - year old girl hiding her hair is not doing so because she wishes to do it. In fact, she does not even know why she is doing whatever she is doing! Even if she is given the choice to remove her hijab once she has attained majority, she would be uncomfortable in doing so as she has been conditioned to believe that a piece of cloth is definitive of her modesty. In a country where rapes are justified by the attire of a woman, juxtapositioning modesty and clothes will feed the devil even more! Agreed that not all women wear hijab out of compulsion but this is a privilege which to our dismay, is not available to most of the women in this country. The constitution which has the word ‘liberty’ mentioned in its preamble cannot light a green signal to a hobson's choice[hijab] when she has been forced to believe that veil is her liberty. This is no liberty, but a delusion of it!
Moreover, conceding with the argument of hijab being integral to Islam would give a constitutional mandate to a practice, regressive in nature. Consequently, those refusing veils would face ostracization. Is it not an attack on their choice of refusal to hijab? Should we allow regression to thrive in the 21st century in the guise of choice? The answer is a resounding No.
Comparison with the Sikh turban is not the right one. As kesh is one of the five pillars of Sikhism and the maintenance of kesh is accorded its due importance in the religion. Even the Punjab and Haryana High Court acknowledged the turban's significance to Sikhism in Gurpreet Singh and Others v. State of Punjab. Moreover, Section 129 of the Indian Motor Vehicles Act, 1988 exempts turbaned Sikhs from wearing helmets while driving or riding on motorcycles. But when it comes to hijab, even Islamic scholars have diverging views. Therefore, the comparison is a flawed one and at best be avoided.
Arguments of absolute autonomy fall into the category of oversimplification. While saying that it is an individual’s choice whether she wishes to wear a bikini, saree hijab, or ghoonghat one forgets that here the context is school and adherence to uniform and rules. No one is coming in bikinis in schools! This over-generalization is the reason a sitting SC judge made a scathing remark that whether the right to dress encompasses the right to undress as well. With all due respect, no one is undressing! These are nothing but loose talks which cause fear-mongering.
Also, allowing hijab would open a pandora’s box as then someone else would come in bhagwa, someone might come with something else and someone might invent a new practice as the right to religion is the manifestation of an individual’s link with God. There would be no end to this tomfoolery and insanity, the question is, where and how would anyone draw a line, if at all possible to draw one?
Finally, even if all the above arguments are rejected and it is established that the girls do have all the rights in the world to wear hijab one must not forget that fundamental rights are not absolute and can be restricted reasonably and the state may restrict the representation of a religious symbol by taking the defence route of uniforms as uniforms are only a reasonable restriction on right to speech and liberty for reasons more than one. First, schools are qualified public spaces and second, uniforms are religiously neutral, therefore the question of discrimination is virtually obliterated.
Moreover, the state is empowered to make laws for the social welfare and social reforms and to eradicate social dogmas that stand in the path of the country’s progress, article 25(2)(a) provides this to the state. The abolition of sati and devadasis was considered legitimate under this article.
The essence of it all
This whole issue boils down to a tussle between two distinct concepts, namely, reasonable accommodation and reasonable restriction. Authority provides an opportunity to earn either of the two, fear or respect and unfortunately, restrictions work on the model of fear and control. For a democracy to thrive, citizens must feel that their voices are not trampled and their choice is theirs and not some dictum. And therefore when authorities have the option, either to give or to take, the former is the way forward.
We do not want an India of fear or control but an India that oozes freedom and tolerance. Tolerance and accommodation are not something unprecedented to this country, our constitution exudes accommodation and our culture emanates tolerance. The foundation of this country is not uniformity but diversity; diverseness of opinions, choices, ideas, religions, languages, colours, cultures, regions, traditions, genders and sexualities. Let us not slay her[India] spirit, let her[India] feel safe and let her[India] feel respected!
As Evelyn Beatrice Hall said,” I disapprove of what you say, but I will defend to the death your right to say it”.Therefore, even though we might consider the piece of cloth in question to be retrogressive but if a girl sees it as her identity, we are no one to disrobe her, let us not be the Dushashan of today.
However, it is imperative that this be asserted, purdah was, is and will be a sign of objectification and regression, with no qualms about it. Clothes were never, are not and will never be definitive of a woman’s modesty. However, whatever we might consider it to be, it is incorporeal as she believes it to be her identity, she wishes to wear it and she has all the rights in the world to assert this choice of hers. It is her education that is more important and if purdah is the tool for her emancipation[if she considers it to be], so be it. This is no freedom if I am to decide your freedom.
Supreme Court’s split verdict in the Hijab case available at <https://www.livelaw.in/top-stories/hijab-ban-supreme-court-split-verdict-karnataka-religion-fundamental-right-article-25-211510> <Last visited on January 8, 2022>
Supreme Court concludes hearing of the Hijab Case available at <https://www.livelaw.in/top-stories/supreme-court-concludes-hearing-in-hijab-case-reserves-judgment-209973> <Last visited on January 8, 2022>
Who argued what in the Hijab case before Supreme Court? Available at <https://www.barandbench.com/news/litigation/who-argued-what-in-hijab-case-before-supreme-court> <Last visited on January 8, 2022>
Hijab Ban in colleges upheld; wearing of hijab not essential to Islam: Karnataka High Court available at <https://www.barandbench.com/news/breaking-hijab-ban-in-colleges-upheld-wearing-of-hijab-not-essential-to-islam-karnataka-high-court> <Last visited on January 8, 2022>