Girls wearing hijabs in
the Southern Indian state of Karnataka have become a hotly debated issue among
Indians in the recent months. Amid growing religious tensions Hijab has also
become a symbol of activism and resistance among Muslim girls. Hijab ban in
Karnataka has enraged Muslim girls, now they are openly protesting the ban
which they conceive as an attack orchestrated by Hindu far-right on their
culture and symbolic practices in Islam. Hijab, the head scarf or the veil worn
by Muslim women has historical etymological references to Arabic verb Hajaba,
in ordinary language it simply means ‘’to hide it’’. As history reveals,
it has been for so long inextricably linked with the identity of Muslim women,
whether it be a religious or cultural practice to wear it.
India has since ancient
times been a sanctuary of religious and cultural diversity. It is by far the
world’s most heterogeneous society with a glorious past of being secular,
mingling people from different castes, creeds, faiths, races, and languages.
But since PM Modi’s BJP came into power in 2014, raking up identity issues and
playing religious card has become a commonality when elections are round the
corner. Early Feb was the peak of a series of decisive campaigns in the run up
to the state elections in India’s most populous State of UP, in which
politician-turned Hindu monk Yogi Adityanath was to decide the fate of ruling
BJP’s grip on power in 2024 general elections. At a time when the Indian
economy is disrupted due to the havoc created by the pandemic, mainstreaming
Islamophobic sensations among the Hindu majority is the most convenient and
plausible political ploy in the hands of BJP. Hijab ban drew the attention of
Nobel-prize winner Malala Yousazsai who tweeted that Indian leaders should stop
marginalization of Muslim women.
Facts Matrix
In early Feb 2022,
Karnataka State Government Order dated 05.02.2022 was issued under and by
virtue of provisions in sections 7(1)(i), 7(2)(g)(v) & 133 of the Karnataka
Education Act, 1983 read with Rule 11 of Karnataka Educational Institutions
(Classification, Regulation & Prescription of Curricula, etc.) Rules,
1995’, requiring all students to compulsorily adhere to the dress code/uniform
in government schools, as prescribed by the government; in private schools, as
prescribed by the school management; in Pre–University colleges as prescribed
by the College Development Committee or College Supervision Committee; and
where no dress code is prescribed, an attire that would accord with ‘equality
& integrity’ and which would not disrupt the ‘public order’ shall be worn.
Section 133(2) of the
Karnataka Education Act is reproduced below:
“The State Government
may give such directions to any educational institution or tutorial
institution as in its opinion are necessary or expedient for carrying
out the purposes of this Act or to give effect to any of the provisions
contained therein or of any rules or orders made thereunder and the Governing
Council or the owner, as the case may be, of such institution shall comply with
every such direction”.
Accordingly the order
mandated College Development Committees constituted under Government Circular
dated 31.1.2014 in all State run educational institutions to prescribe a
‘Student Uniform’. If you look into the manner in which the order is couched,
the order per se does not prescribe a uniform, rather the discretion to
prescribe a uniform is conferred to the College Development Committees. However
critiques of the ban allege that since the President of these committees is a
Local Member of Legislative Assembly, there is a high possibility for politics
to creep into the educational environment.
There is no per se a
hijab ban in Karnataka, what the new state directive has introduced is a
mandate to educational institutions to prescribe a 'student uniform' of their
choice.
The effect of the state
government order has been to empower educational institutions to introduce
student uniforms of the institution's choice. But it has indirectly placed
hijab and other religious garments out of place and put in place a ban on those
clothing with religious symbols, thus effectively preventing girl students from
wearing hijab when entering school premises in Karntaka. It is none other
religious garment than hijab which has sparked controversy across the length
and breadth of India. It would also indirectly impose a condition on Muslim
girls to remove their Hijabs if they were to gain access to schools. One would
argue that this has created an unreasonable classification between female
students; those who wear a Hijab and those who do not. And more importantly a
very grave discrimination on girls who profess and practice Islam. Consequent
to the ban, countless number of protests broke out across Karnataka calling for
the government to retract what they termed as a manifestly arbitrary and
racially motivated move targeting Muslims. Ironically to what the ban really
stands for, in response to these protests, scores of students draped in Saffron
scarves- the color of India’s ruling BJP launched rival protests supporting
the government’s directive.
The
legal matrix:
Being aggrieved by the
state government order petitioners a group of students professing and
practicing Islamic faith filed a writ application under and by virtue of
Articles 226 and 227 of the Indian Constitution seeking a declaration of their
fundamental right to practice the essential religious practices of their
religion, including wearing of hijab in classrooms. Regard being had
to the enormous public importance and constitutional significance of the
questions involved, the petition in SMT Resham and Sri Mubarak vs. State
of Karnataka and others (Writ Petition No. 2347/2022 (GM-RES C/w and
connected matters) was taken up before a Special Bench consisting of three
judges led by Chief Justice Ritu Raj Awasthi.
The State successfully defended its ban of Hijab in the High Court. An
interim order was issued by High Court pending the outcome of the final hearing
restraining all students regardless of their religion or faith from wearing
saffron shawls (Bhagwa), scarfs, hijab, religious flags or the like within the
classroom. When petitioners invoked the jurisdiction of India's top court
challenging this interim order, Supreme Court’s answer was pathetically worded,
clearly couched with the intent to avoid looking into a matter under national
spotlight which will have far reaching implications for the religious harmony
in the country. Justice NV Ramana expressed the following message. “Please do
not spread these things to the national level. We will interfere only at an
appropriate time.”
The stance of the State
government is that the purpose of the State in regulating the state-run
educational institutions is to preserve the values of secularism and
neutrality. To harness their position, the State maintains that wearing a
headscarf is not an essential religious practice for Muslims which can be
protected under the fundamental right of freedom of religion as enshrined in
the Article 25 of the Indian Constitution. Thus the first issue to be decided
by the court was the validity of the contention proposed by the State,
particularly, whether wearing a hijab is an essential religious tenet in Islam.
In this regard, a clutch of other questions would also naturally surface,
starting from the question whether a girl student is required to cover her head
in an all-girls educational establishment. An important case law in point
is Fathema Hussain Sayed v Bharat Education Society wherein
the Bombay High Court has observed that wearing headscarf is not prescribed by
Quran, before other women.
Petitioners before the
High Court of Karnataka charged that the impugned directive is in sheer
violation of Articles 14, 15, 19, 21 and 25 of the Indian Constitution. Their
contention was that wearing hijab is an expression of their faith which is
protected under Article 19(1) (a) of the Constitution and which therefore can
only be restricted on reasonable grounds set out in Article
19(2). Their position is that silently wearing a hijab or headscarf
in a class room does not in any manner disturb the public order. Instead a ban
on Hijab is what disturbs the public order and violates notion of secularism
which is a basic feature of the Indian Constitution.
The Preamble to the
Constitution read with Articles 27 and 28 of the same are a testament to the
ethos of positive secularism prevalent in India. A secularist country would be
one without an official religion or one which would not extend state patronage
to a particular religion. The Preamble to the Karnataka Education Act of 1983
also has as its statutory object “fostering the harmonious development of the
mental and physical faculties of students and cultivating a scientific and
secular outlook through education. Thus, out of a sense of a duty to give
effect to the secularism as envisioned in both the Constitution and the Act,
the State government has issued an order to mandate schools to prescribe a
standard uniform.
The issue arose before
the court to consider whether wearing of hijab constitutes an essential part of
Islamic religious practices in view of the constitutional guarantee conferred
on religious minorities by Article 25 of the Constitution. It was the
contention of the State that the Article 25 of the Constitution which
guarantees the right to freedom of conscience and free profession, practice and
propagation of religion is not absolute and in anyway susceptible to reasonable
restriction and regulation by law. Article 25 provides that subject
to public order, morality and health all persons are equally entitled to
freedom of conscience and the right freely to profess, practice and propagate
religion. The Respondent State argues that be it the freedom of conscience, be
it the right to practice religion, be it the right to expression or be it the
right to privacy, none of these constitutional rights are absolute, and are inherently
susceptible to reasonable restriction or regulation by law. Once Dr. B.R
Ambedkar has stated in one of his addresses to Legislative Assembly that
religion in India covers almost every aspect of life from cradle to death that
we need to restrict the legal and constitutional scope of religion to ‘so that
it would not extend beyond beliefs and rituals which are essentially religious.
The Petitioners also
contended that one’s appearance and choice of attire are a part of
constitutionally guaranteed freedom of speech and expression protected under
Article 19(1) (a) and Article 21 of the Constitution; and as the right to wear
hijab is a matter protected under privacy jurisprudence and therefore no
institution is in a position to compel them to remove the same. Further citing
the gross non-application of government’s mind to the concept of ‘least
restrictive test’ (Modern Dental College v State of Madhya Pradesh and Mohd
Faruk v State of Madhya Pradesh), the petitioners allege that an all-out
ban as proposed by the government order would be extremely disproportionate in
the event of a possible infraction of prescribed the dress
code. Moreover they contended that the move to ban hijab is
manifestly arbitrary and that Quran injuncts Muslim women to wear hijab whilst
in public gaze.
Reflecting on the
purported basis on which the government order is founded, particularly
disruption to public order, the petitioner argued that if wearing of hijab
disrupts the public order, what the State should have done was to take action
against the disrupters, and not to resort to ban hijab. Moreover in as much as
a girl student’s autonomy over her choice of attire and her identity is
compromised with the banning of hijab, the government order is gender-biased
and infringes the right to equality and equal protection of law guaranteed
under Articles 14 and 15 respectively.
The State counter argued
that the scanty references by the petitioners to wearing of hijab as
constituting an essential religious practice in Islamic faith fail to establish
before court that such a practice has been in existence among female students
for immemorial times, and these references are insufficient to elevate such a
practice to a claim to wear hijab as of right. It is the Respondent State’s
stance that wearing of hijab is prima facie a threat to constitutional morality
and human dignity and individual choice of Muslim women. The landmark judgement
in Shayara Bano v Union of India AIR 2017 9 SCC 1 shifted the parameters of which
denominational religious practices qualify themselves as essential religious
practices. Bano recognizes as essential only those
practices which do not militate against the constitutional morality, more
particularly the fundamental values of dignity, liberty and egalitarianism.
Thus the ‘’essentiality test’’ is twofold; the protection under the umbrella of
Article 25 of the Constitution comes forth only when a religious practice is
both an indispensable part of a religion and shown to be in harmony with the
constitutional values. The Supreme Court placed heavy reliance in coming to its
verdict on the remarks made by Sara Slininger from Centralia, Illinois in her
research paper “Veiled Women: Hijab, Religion, and Cultural Practice” where she
emphasizes the fact that veiling by women has been part of some cultures way
before prophet Muhammad was born and for the same reason she distinguishes
wearing hijab as merely a cultural thing, not a religious practice. Petitioners
have failed to demonstrate for how long they have been wearing hijab in schools
or to establish head-covering is an inviolable and indispensable religious practice
in Islam. The court reasoned that if hijab were an essential part of Islamic
faith, those who do not wear hijab should be committing a sin, or without it
Islam should lose its glory and cease to be a religion. However in court’s
view, that is not the case.
Schools are ‘qualified
public places’ wherein a certain discipline and dress code as prescribed must
be adhered to. Therefore inherently an educational institution has the power to
set up a code of conduct for that matter. Responding to the contention of the
Petitioners that the Act of 1983 combined with the Rules of 1995 combined does
not confer a statutory power on state government to mandate institutions to
prescribe a uniform, the State argued that the state government order is in
compliance with the statutory scheme propounded by the Act of 1983 under
section 133 read with Sections 7(1)(i), 7(2)(g)(v) of the Act and Rule 11 of
the 1995 Curricula Rules, and even Articles 39(f) and 51(A) of the Constitution
beyond. Article 39(f) imposes a duty on the state to direct its policies to
ensure that children are given opportunities and facilities to develop in a
healthy manner and in conditions conducive to freedom and dignity and that
childhood and youth are protected against exploitation and against moral and
material abandonment. Article 51A (e) imposes a fundamental duty on every
citizen of India 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. Considering the backdrop in which the state government order was issued
amidst the unrest and agitations within educational institutions, the dress code
sans any religious denominations was mandated for the sole purpose of keeping
peace and tranquility. The Act of 1983 and the Rule of 1995 intend to give
effect to constitutional secularism and to the ideals that animate Articles
39(f) & 51(A). In terms of section 7(2)(g)(v) of the Act of 1983 State
government can prescribe in educational institutions curricula to inculcate in
and promote
among students the constitutional values of 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. It was respectfully
pleaded on behalf of the State that the impugned order has been issued under
and by virtue of section 7(2) (g) (v) by heading to the constitutional values
of religious harmony.
Commenting on the
Petitioner’s suggestion to make reasonable accommodation to allow girl students
to wear the prescribed uniform with hijab of a particular structure and colour
suited to the uniform, the court stated that such an accommodation would
establish a sense of ‘social-separateness’ undesirable to the main objective of
achieving uniformity and homogeneity in a classroom setting on the lines of
secularism. The main object of banning hijab is to exclude any religious
symbols entering into the education system and achieve secularism, uniformity
and standardization in education. However critiques of the judgement bringing
their arguments to the table stresses that what the State and education system
should promote is plurality and heterogeneity, not uniformity or homogeneity,
and it is their belief that unlike homogeneity, it is the heterogeneity which
nourish and encourage constitutional spirit of diversity and inclusiveness.
After months-long agitation over the ban, Karnataka High Court in its final ruling rejected all the arguments made on behalf of the Petitioners, and stamped a verdict in favour of the Respondent State. In its considered opinion the court upheld the State government order and held that the prescription of school uniform is only a reasonable restriction constitutionally permissible. It went an extra mile to make a controversial remark that hijab is not essential or obligatory religious practice of Islam. This has, since the ruling, even more intensified the ethnic divide between Muslims and Hindus. Supporters of the judgement welcome it by lauding the three-judge bench that it was bold enough to rule that wearing headscarves as a religious symbol would be contrary to the spirit of the Indian Constitution and its special emphasis on positive secularism.
Bringing secularism to
the fore
Any reasonable man would
pose the question whether it should be hijab first, or kitab first. In Hindi
kitab simply means books. Undoubtedly, in education books matter most, and
prescribing of a uniform always comes second to it. It is also true there are
many other key areas and core issues than petite questions on garments in the education
system in this country.
Taking it from there, the magic wand in politics ''Divide and rule'' takes our conversation about hijab ban to another level. Rulers have always been looking for ways to find aspects which divide us, when there are so many bridges to unite us. Today as Hijab ban is capitalized by politicians as a divisive tool of their dirty demagoguery politics, it brings onto the table a much larger issue. Hijab ban escalated first in Karnataka a place far away from UP where polls ended recently, had a route to connect itself to UP polls. This is seen by many as BJP playing religious card to distract voters from some of the key issues Indian economy is facing.
Be that as it may, there are some other important but untouched rather hidden issues that underlie our broken social fabric to which education is able to find lasting solutions. The need to have a secularist and uniform education system is one such significant aspect which has become a sort of a taboo in modern-day rights-indulging liberty-loving political societies. In the modern era, making education system secular is still a valid point as was in '60s. When religious denominations are off-limits to education, there is little room for children to be exposed to elements of religious extremism. Although this is not in any way connected to hijab, as we all are aware extremism sometimes silently creeps into our society in the form of symbols, burqa and niqab are such religious clothing which has sparked controversy in the global context.
In homogeneous conditions, children learn to identify themselves as equals. No child would be compelled to find a difference in the looks of the other or nor their social status. Imagine a class room in a society where there is already a rift between communities; there the Sikh child comes with a turban on his head, a Hindu child comes clad in saffron clothes and a Muslim girl with hijab or even a burqa. At a first glance, on a mere superficial view, you may be tempted to appreciate the diversity and heterogeneity in the class room, thinking children from a very young age will learn to respect the diversity and inculcate in themselves religious tolerance. But on a practical level, religious dressing like saffron towels (Bhagwa), scarfs, hijab, and other religious flags tends to divide us more than to bridge existent gaps, and thus does more harm than our perception would allow us to see. It stimulates children from a very young age to differentiate one another solely on religious lines. Therefore, religious symbols and dressing in educational settings would be at cross roads with achieving a secularism and neutrality in our education system. Thus reasonable restriction on religious attire is necessary to maintain school campuses as a place of religious neutrality.
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