HIJAB BAN: BEYOND THE URGE TO MAINTAIN DECORUM
HIJAB BAN: BEYOND THE URGE TO MAINTAIN DECORUM
This article has been written by Ms. Nida Khanam, a final year student of LL.B. at Campus Law Centre, University of Delhi.
The ban on hijab for students and teachers in colleges in Karnataka in February had triggered a furore amid growing concerns regarding the attacks on Muslim religious symbols and practices in the name of “uniformity”. The situation escalated when a group of hijab-wearing Muslim girls camped outside a college in the state’s Udupi district after the authorities shut gates on them.
The judgment given out by the Karnataka High Court upholds the ban on wearing hijab by the students on the ground that wearing it is not part of an essential religious practice under Islam and that the prescription of school uniform is only a reasonable restriction which is constitutionally permissible. It has irked social and political activists.
Kavita Krishnan, Secretary of All India Progressive Women’s Association, writes that the reason for targeting the hijab was always to humiliate, harass, and isolate Muslims. Critics have also argued that episodes like “Sulli deals”& “Bulli bai” wherein prominent Muslim women were listed for “auction” and now the ban on hijab are ramifications of the same theme: the otherisation of Muslims in India.
Article 25 and the Test of Essential Religious Practice
The Karnataka High Court bench observed that Article 25 begins with the expression ‘Subject to..’ and thus, the freedom guaranteed by this article is placed on comparatively a lower pedestal by the makers of our Constitution qua other Fundamental Rights. Further, the bench held that restrictions imposed on religious practices on the grounds of public order, morality, and health are saved by the opening words of Article 25(1) and the saving would cover beliefs and practices even though considered essential or vital by those professing the religion.
Alternatively, some of the petitioners vehemently argued before the bench, that regardless of the right to religion, the girl students have the freedom of conscience guaranteed under Article 25 itself and that they have been wearing hijab as a matter of conscience and therefore, interdicting this overt act is offensive to their conscience and thus, violative of their fundamental rights. The bench rejected this submission on the ground that whether petitioners had the conscience of the kind and how they developed this conscience is not averred in the petition.
While it is unfortunate that the petitioners could not provide any averments in their petition to show how this conscience has developed, the author respectfully submits that Muslim women have time and again shared that hijab means a lot more to them than a mere piece of cloth.
The petitioners had relied on the case of Bijoe Emmauel to support their submissions. The bench, however, noted that the quoted case was related to the ‘belief of Zoroastrian community’ and thus, this case is not the best vehicle for drawing a proposition essentially founded on ‘freedom of conscience’.
After examining several Islamic sources, primarily the commentary of Abdullah Yusuf Ali, the bench concluded that wearing the hijab is only recommendatory and not essential. The three-judge bench held that at the most the practice of wearing this apparel may have something to do with culture but certainly not with religion. Such an observation does not sit well if we are to look at the previous judgments wherein the test of essential religious practice was employed. For instance, the Kerala High Court in the case of Amnah Bint Basheer has established that the wearing of a hijab forms an essential part of Islam after analysing the essentiality of wearing the hijab. In light of the essential religious practice test propounded by the Supreme Court in its judgment in the Sri Shirur Mutt case in 1954, and the literature of various Quranic injunctions and the Hadiths, the Kerala High Court had concluded that covering the head and wearing a long sleeve dress by women constitute an essential religious practice in the Islamic faith, and is thereby, protected under the constitutional scheme of Article 25(1).
The petitioners had relied on this judgment to present their arguments before the Karnataka High Court, however, the bench observed that this case was not related to school uniforms as such and that the reasonable exception which was made in this case for All India Pre-Medical Entrance Test was a one-time affair unlike the daily routine of schools. Thus, the bench held that such an exception cannot be stretched too wide to swallow the rule itself.
While the proponents of the hijab continue to press the essentiality of the hijab in Islam, the author respectfully submits that this is not the sole aspect that makes the ban on the hijab a violation of the rights guaranteed by the Constitution. Thus, many of those who analysed the arguments taken by the petitioners before the High Court have expressed their discontentment with the fact that the petitioners failed to convincingly highlight other important aspects vis-à-vis Article 19(1)(a) and Article 21 of the Constitution. Experts are of the opinion that the matter could have been alternatively disposed of without entering the theological domain.
A matter of Privacy
The Karnataka High Court has categorically upheld the validity of placing a reasonable restriction on the fundamental rights by prescribing a uniform for all the students. The author respectfully agrees with the High Court that fundamental rights are not absolute and can be subjected to reasonable restrictions. However, it is rather interesting to examine the point expressed by the bench regarding the power to prescribe a uniform when seen in the light of Article 21 of the Constitution under which the Hon’ble Supreme Court has recognised the right to privacy in the landmark case of Puttaswamy v. Union of India (2017 10 SCC 1). In this context, it is pertinent to briefly examine the observations made by Justice Chelameswar who, in his concurring judgment explained the essential contours of the right to privacy as a fundamental right. Firstly, he held that while the right to freely profess, practice, and propagate religion may be a facet of free speech and expression guaranteed under Article 19(1)(a), the freedom of the belief or faith in any religion is a matter of conscience falling within the zone of ‘purely private thought’ process and is an aspect of liberty. Secondly, he added that privacy is essential to the exercise of freedom of conscience and the right to profess, practice, and propagate religion. Most importantly, he opined that the choice of appearance and apparel are also aspects of the right to privacy under Article 21 of the Constitution.
It is apparent from the discussion above that the power to prescribe a uniform is clearly at odds with the choice of appearance and apparel. Such observation also hits hard at other Supreme Court precedents which have protected the ‘freedom of expression’ and one’s choice of appearance. The Karnataka High Court bench, however, observed that schools are ‘qualified public places’ and such places by their very nature repel the assertion of individual rights to the detriment of their general discipline and decorum
Interestingly, the petitioners had placed reliance on the case of South Africa wherein a school had objected to a student wearing a nose stud on the ground that it violated the school’s uniform. The student in her defence said that wearing the nose stud is a part of her cultural beliefs. The Constitutional Court of South Africa in this case ruled that though the dress code applied to all the students, neutral criteria can potentially prevent certain students from expressing themselves fully, and the failure to reasonably accommodate their religious and cultural beliefs could relegate such groups to the margins. The Karnataka High Court bench, however, disregarded the importance of this judgment in the present context as a nose stud is too insignificant and consequently, by no stretch of the imagination, would affect the uniformity which the dress code intends to bring in the classroom.
One is left to ponder upon the question of whether we, as a religiously and culturally rich nation, seek uniformity or unity? Weren’t we a nation that took pride in its diversity?
Principle of Reasonable Accommodation
The counsel for the petitioners passionately submitted before the Karnataka High Court bench that the students should be permitted to wear hijab of structure and colour that suits the prescribed uniform. The counsel was making this argument in the light of the principle of reasonable accommodation. The bench responded by observing that if the hijab is allowed to be a part of the uniform, the school uniform will cease to be uniform. The bench noted that in such a scenario, there shall be two categories of girl students- those who wear the uniform with hijab and those who do it without. That would establish a sense of ‘social separateness’ which is not desirable.
The bench observed that the regulation in question aims to create a ‘safe space’, where egalitarianism should be readily apparent to all students alike. Such an observation flies in the face of legal precedents, the classic one being the case of Bijoe Emmanuel v. State of Kerala & Ors. (1987 AIR 748) , wherein the Supreme Court had clearly held that the State is under a constitutional obligation to take all possible measures to ensure that the identity of the minority, in whichever form that may be, is not compromised. “We only wish to add: our tradition teaches tolerance; our philosophy preaches tolerance; our constitution practices tolerance; let us not dilute it”, says the said judgment which was delivered by Justice Chinnappa Reddy on August 11, 1986.
An onslaught on Women’s Agency
While it cannot be denied that women are more often than not wrongly subjected to socio-religious notions, eventually becoming victims of patriarchy or community values, what must not be ignored is the importance of women’s agency.
The bench observed that the insistence on wearing of purdah, veil, or headgear in any community may hinder the process of emancipation of women in general and Muslim women in particular… Be it business, industry, profession, public & private employments, sports, arts, and such other walks of life, women are breaking the glass ceiling and faring better than their counterparts, says the Karnataka High Court judgment but at the same time, it fails to give women the agency to decide for themselves.
If a woman chooses to cover her head out of her religious obligation or otherwise, it must be respected as her freedom of expression [Article 19]. Likewise, if a woman chooses otherwise, i.e. not using the headscarf to cover her head, the same should be respected under Article 19 [freedom of expression] and Article 21 [right to privacy and the right to live with dignity] of the Constitution. Interestingly, in this context the episode wherein Muslim girls across the state of Karnataka were forced to uncover their heads to enter school/college can be juxtaposed against the incident wherein a Muslim girl from Kashmir who topped class 12th board exams was targeted online for not wearing the hijab. In either case, forcing women to cover/uncover their heads cannot be seen as acceptable.
Further, supporting the ban on hijab on the pretext of a progressive step is not only an onslaught on the agency of women but also violates the international legal framework which guarantees the right to freely manifest one’s religious beliefs, the right to freedom of expression, and the right to education without discrimination. However, the Karnataka High Court bench has confidently oversimplified the matter by linking the ban to the emancipation of women. The critics of the judgment are of the opinion that if people are interested in “liberating” women from wearing a hijab, they must recognise that forcing women to do anything in the name of liberation does not achieve their goal. An important pressing question that arises in such a discussion is when are we going to let the women make their own choices?
A threat to Muslim Women’s Access to Education
The Karnataka High Court observed that it hardly needs to be stated that this does not rob off the autonomy of women or their right to education inasmuch as they can wear any apparel of their choice outside the classroom. However, the critics of the judgment are of the opinion that such a step could have a catastrophic impact on Muslim women’s right to education (Article 21-A) given the fact that the share of Muslim girl students is already far lower compared to other girls. Experts believe that a ban on the hijab would amount to a double blow to Muslim girls. A ban on hijabs would “clearly impact” Muslim students’ access to education, said Shilpa Phadke, a researcher at the Tata Institute of Social Sciences in Mumbai.
In order to “emancipate” women by banning the hijab, the Karnataka High Court bench seems to have completely disregarded the opinions of the Muslim women who choose to wear it in an effort to be seen, heard, and understood in a predominantly non-Muslim majority.
The Supreme Court has been approached in the present matter and one is hopeful that the Apex Court will follow a reasonable course while ruling in favour of the constitutional rights and values that India truly stands for.
(The views and opinions expressed in this article are authors’ own and do not necessarily reflect the official policy or position of the Legal Aid Society, Campus Law Centre, University of Delhi.)