The Hijab Debate – A Socio-Legal Perspective

Angela Elizabeth John et al. |
CSPS Debate

Introduction

The vastly debated protagonist of a garment, the Hijab, has increasingly been a subject of mass scrutiny for the past several months. The immediate cause behind this situation is rooted in the ‘Hijab row’ that took over Karnataka, wherein girl students were barred from entering their educational institutions while adorning a headscarf. Questions of identity, minority rights, the autonomy of choice and electoral politics arose, and the students took to the judiciary to raise their issues. They claimed that their fundamental rights had been violated and that the actions they were subjected to violated fundamental human rights.

Apart from being a religious practice, the Hijab has been used to express dissent that symbolizes an assertion and demand for acceptance of the Muslim identity. Prof. Leila Ahmed, in her book, “A Quiet Revolution: The Veil’s Resurgence, From the Middle East to America”, explains the capacity of the Hijab to signal resistance or protest against the majority’s views, to make its wearers a dissenting minority affirming their heritage and values, and challenging the inequities and injustices of mainstream society.

Apart from being a religious practice, the Hijab has been used to express dissent that symbolizes an assertion and demand for acceptance of the Muslim identity. Prof. Leila Ahmed, in her book, “A Quiet Revolution: The Veil’s Resurgence, From the Middle East to America”, explains the capacity of the Hijab to signal resistance or protest against the majority’s views, to make its wearers a dissenting minority affirming their heritage and values, and challenging the inequities and injustices of mainstream society.[1] Women protesting to wear and take off the Hijab have always been part of a political narrative, with voices being raised against those forces that stand to regulate their choices. For those who wear it, it is often an integral part of their identity. To echo what the French-Iranian graphic novelist Marjane Satrapi said, forcing women to either – is violence.[2]

With the Supreme Court judgment being a split verdict, with Justice Hemant Gupta dismissing the petitions challenging the Karnataka High Court order that upheld the Hijab ban in educational institutions, and Justice Dhulia upholding the matter as a personal choice, it has been left to the discretion of the Chief Justice to constitute a larger bench to hear the case. This paper attempts to analyze the current debate around the Hijab in the wake of the Karnataka government order and the subsequent questions raised regarding the constitutionality of the same. The first part of the paper analyzes the question of women’s autonomy and agency in such discourses. The second part engages with the current legal debate that calls into question the ban in light of constitutional provisions.

The dilemma of State Intervention

Proponents of the ban claim that it is in the best interests of the girl students as it seeks to rescue them from an oppressive religious practice. Such a claim not only overestimates the authority of the government in religious matters but also assumes the authority of the State to intervene and control women’s bodies in the name of progress and empowerment.

The order of the Karnataka Government banning the practice of girl students wearing the Hijab in school classrooms is reflective of the status of women in the prevailing socio-political structure and their role as repositories of tradition and values. From representing nations, communities, and families to transmitting these values and customs to future generations, Aditi Narayani Paswan and Shahla Tabassum argue that women’s lives and bodies are used to serve roles both symbolic and functional.[3] When the State sees the Hijab as an article that perpetuates a specific narrative of freedom of choice that does not fit into its desirable picture of societal order (one embedded in patriarchy), it is only natural for a government to enforce such a ban. Proponents of the ban claim that it is in the best interests of the girl students as it seeks to rescue them from an oppressive religious practice. Such a claim not only overestimates the authority of the government in religious matters but also assumes the authority of the State to intervene and control women’s bodies in the name of progress and empowerment. Even if, for argument, this claim held any value and had factual backing, how can a ‘ban’ by the State achieve its claimed objective of ‘liberation’? What, then, is the difference between a religion that supposedly imposes the practice of wearing the Hijab on girls and a state that imposes a ban on the practice? In either case, there is a violation of bodily autonomy and integrity of women and girls – but in the latter, it is done so, ironically, under the garb of protection and liberation.

On juxtaposing the protests in Iran following the death of Mahsa Amini, and the demand of the girls in Karnataka, a clearer picture emerges one that is premised on women’s right to choice, thereby agency, and one that calls out such over-enthusiastic interventions of the State that are solely aimed at restoring/retaining the patriarchal structure and maintaining societal order.

Questions that arise from such gender-religion intersections, such as those that have been surfacing recently, are more about women’s bodily integrity and sexual autonomy than it is about regressive religious practices. On juxtaposing the protests in Iran following the death of Mahsa Amini, and the demand of the girls in Karnataka, a clearer picture emerges one that is premised on women’s right to choice, thereby agency, and one that calls out such over-enthusiastic interventions of the State that are solely aimed at restoring/retaining the patriarchal structure and maintaining societal order. For instance, the debate on marital rape is premised on the public-private divide that the State, apparently, actively seeks to retain. In the split verdict of the Delhi HC, Justice Hari Shankar upheld the marital rape exception to IPC Section 375 on the grounds of the necessity to maintain the sanctity of marriage. This argument has always occupied considerable space in similar discourses on domestic violence and incest. By choosing to refrain from transgressing into the private, the State manages to privilege the sanctity of marriage, i.e. family, over the right to life and dignity of women.

The courts have failed to conclusively answer the questions of what is private, whether religion and its practices fall in the category of the private and if yes, to what extent the State can intervene in these private affairs even if it claims to liberate an oppressed section within the religion.

The courts have failed to conclusively answer the questions of what is private, whether religion and its practices fall in the category of the private and if yes, to what extent the State can intervene in these private affairs even if it claims to liberate an oppressed section within the religion. This pattern of the State that oscillates between extreme intervention and complete refrainment, with women and girls being the sole stakeholders, points to the fact that such interventions (or non-interventions) are only to retain the patriarchal structure from which the State benefits. However, such questions are often dealt with through the State’s legal apparatus, which tends to neglect the larger socio-political reality, like in the case of the Hijab verdict.

Constitutionality of the Government Order

In the present case, since the practice is not in violation of public order, morality, or health under Article 25(2), it is entitled to protection under Article 25. The wearing of the Hijab does not pose any threat to other students, faculty, or any other staff in the institution so as to constitute a public order problem.

The legal debate regarding the ban on Hijab mainly revolves around Articles 19, 21, 25 and 29 of the Indian Constitution.[4] The ban fails to pass constitutional muster even if the debate was to be foreclosed to a constitutional and legal framework. The wearing of the Hijab as an article of faith is protected by the Freedom of conscience and free profession, practice and propagation of religion under Article 25 of the Constitution. A regulation or limitation on this Right should be in accordance with the law. In the present case, since the practice is not in violation of public order, morality or health under Article 25(2), it is entitled to protection under Article 25. The wearing of the Hijab does not pose any threat to other students, faculty or any other staff in the institution so as to constitute a public order problem. Moreover, the choice of the students to wear the Hijab inside the classrooms is a matter of right which ought to be protected by the courts.

By virtue of Article 29(2) of the Indian Constitution, no citizen shall be denied admission into any educational institution of the State or aided by the State on grounds only of religion, race, caste, language or any of them. By banning the wearing the Hijab inside classrooms, the institution essentially denies education to girl students. The argument by the proponents of the ban that the choice to attend school is still open to the girls fails to recognize that the restriction on the practice of wearing the Hijab is a direct infringement on the right to education of girls belonging to the religious community as it restricts their access to government educational institutions. Such a ban is setting in place an unreasonable condition for accessing education. By bartering education, the government order and the institution are in violation of Article 29(2) and Article 21A of the Constitution.

The proponents of the ban fail to understand that an individual’s personhood is not isolated from their religious identity. By assuming that the aggrieved girl students would still have the choice to attend school despite the ban on the Hijab, the High Court is assuming that religion and its practices are not part of the student’s identity.

The proponents of the ban fail to understand that an individual’s personhood is not isolated from their religious identity. By assuming that the aggrieved girl students would still have the choice to attend school despite the ban on the Hijab, the High Court is assuming that religion and its practices are not part of the student’s identity. Educational Institutions are supposed to be enabling spaces that celebrate diversity- not by the erasure of differences, instead by embracing diversity and providing the students with an opportunity to interact, understand and recognize these differences. Educational institutions run by the State or aided by the State, have the constitutional duty to ensure equality under Article 29(2). This equality must be achieved not by eliminating the potentiality of differences by denying education to a particular religious sect that carries out different practices and customs, but by creating equality of opportunity for all. In Aruna Roy v. Union of India[5], the court opined that maintaining complete neutrality by erasing differences is not only an ineffective method to tackle intolerance but also creates a hostile and uncompromising space that is ignorant of differences and diversity. Hence, safeguarding secularism by restricting a particular religious group from exercising their faith is counterproductive to obliterating religious intolerance in the first place.[6]

The caveats to Article 25 and Article 19 must be interpreted in accordance with Article 14 of the Constitution to prevent arbitrariness in implementation. In the Bijoe Emmanuel[1] judgment, the court used the concept of ‘reasonable accommodation’ in favour of the appellants to ensure the inclusion and acceptance of a particular religious faith.

The Right to Freedom of Expression guaranteed by the Constitution encompasses the concerned right to wear the Hijab, and the ban on the practice is a violation of Article 19(1)(a). The caveats to Article 25 and Article 19 must be interpreted in accordance with Article 14 of the Constitution to prevent arbitrariness in implementation. In the Bijoe Emmanuel[7] judgment, the court used the concept of ‘reasonable accommodation’ in favour of the appellants to ensure the inclusion and acceptance of a particular religious faith. The State has an obligation to ensure reasonable accommodation to all its citizens irrespective of religion, caste, sex or any other differentiating factors. The Right to freedom of expression of one’s identity does not discriminate based on religion. The practice of wearing the headscarf does not constitute the need for reasonable restrictions under Article 19(2). Article 19(1)(a) is neither explicitly nor implicitly subject to the prescribed code of conduct of the educational institution but rather, it’s the other way around. State legislation are supposed to derive its objective from the Constitution and the method prescribed by such a legislation to implement the same should be in compliance with Constitutional principles of secularism, equality and non-discrimination. Any legislation, rule or order that fails to comply with the basic structure of the Constitution, as propounded in Kesavananda Bharati[8], would be in violation of the Constitution.

The ban is a clear violation of Article 21 since it interferes with the personal choice of the aggrieved students to practice their religion. When there is evidence of a consistent practice being exercised by the members of a particular community conscientiously, the State, through the law, ought to protect this Right of the members by virtue of Article 21 and Article 25.

The essence of the Right to Privacy[9], as elaborated in the Puttaswamy[10] judgment, is its recognition of plurality and the necessity to preserve heterogeneity. In the present case, the ban is a clear violation of Article 21 since it interferes with the personal choice of the aggrieved students to practice their religion. When there is evidence of a consistent practice being exercised by the members of a particular community conscientiously, the State, through the law, ought to protect this Right of the members by virtue of Article 21 and Article 25.

The argument by the proponents of the ban that the prescribed code of conduct is necessary to maintain uniformity and discipline within the educational institution is inherently flawed as it neglects the question of diversity and presumes the need for homogeneity as a prerequisite of uniformity. The Right to Freedom of Expression of the students cannot be suspended on arbitrary grounds, such as the attempt made by the state government when neither the practice itself nor any consequences of the practice have been proven to disrupt national security, public order, morality or decency as laid down under Article 19(2). The government order has failed to ground its objective in constitutional principles, thereby rendering its implementation arbitrary. Such arbitrariness in a sensitive and personal issue like that of the practice of wearing the Hijab as an article of faith is violative of Article 14 and Article 41. Toleration of religious practices, when it doesn’t pose any form of threat to public order, health or morality, is integral to the fabric of secularism.[11] Educational Institutions, being secular spaces, have the constitutional obligation to accommodate differences and embrace diversity.

Conclusion                                                                                          

The complexity of the Hijab debate lies in the interplay between its legal, social and political aspects. This paper has attempted to provide a preliminary analysis of the first two, which feeds into the third to some extent. The prevailing political climate in India necessitates the scrutiny of legislation, orders and other State actions. At the core of the ruling party’s ideology of Hindutva lies the principle of homogenization and eradication of otherness.[12] In its pursuit to consolidate Hindu votes by establishing and institutionalizing the communal divide through such actions, the State chooses to overlook its numerous casualties – like the girls in Karnataka. When such a political agenda seeps into the social and supposedly derives legitimacy from the constitution, questions of citizenship, minority rights and representation are inevitably raised.

References:

Authors: Angela Elizabeth John, Drishti Bansal and Tania Abraham (BA Law & Politics, School of Law, Governance and Citizenship, Dr. B.R. Ambedkar University Delhi)

 

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