The Hijab Issue
Did such imposition of ban happen before?
Armed Force Regulations,1964, prohibits the growth of hair by Armed Forces personnel, except for religious purposes e.g. Sikhs. In 2016, A Muslim airman was removed from the Indian Air Force for keeping a beard. He went to SC but failed to prove that keeping a beard is an essential part of Islam.
Kerala High Court: To prevent cheating in the exams, CBSE / NTA-NEET has The right to enforce the Dress code e.g. half sleeves not having big buttons, slippers and not shoes” etc. Because CBSE has a shortage of manpower to check every candidate and even invigilators can demand Muslim girls to remove their Headscarf to check dummy candidates / ear-Bluetooth.
Supreme Court 2004 Judgement: Ananda Marga sect had no fundamental right to perform the Tandava dance in public streets since it did not constitute an essential practice. Parsi keep their dead bodies at ‘Tower of Silence’, Wherein the corpse will decay & the vultures may eat it. In the 2020 pandemic times government prohibited this. Reasons: World Health Organization has noted that if a person died of Covid-19 while he or she was infectious, the lungs and other organs may still contain the live virus even after death for up to 9 days. It recommended only cremation or burial for the disposal of such bodies.
The final judgment of the Supreme Court: “Tower of Silence” will be covered with an iron grid so that vultures, birds, and animals cannot come into contact with the corpses placed inside. This has been acceptable to both governments as well as the Parsi petitioner.
In 2018: Assam Madrasa Education (Provincialization) Act abolished all state-run Madrasas. all state-run madrasas were to be converted into “regular schools” for “general education”- to make it secular. Certain Muslim leaders went to Guwahati High Court saying the government’s move violated the fundamental rights under Articles 25, 26, 29, and 30. High Court has rejected their appeal because secularism was a “basic structure of the Constitution”, and as per Article 28 (1), this secular nature “mandates that no religious instruction shall be provided in any educational institution wholly maintained out of state funds”. If any community wants to establish a religious school they have the freedom by using their own funds.
Constitutional provisions:
Freedom of religion, dress, and beard: Article 25(1) of the Constitution guarantees the “freedom of conscience and the right freely to profess, practice and propagate religion”. It means that the state shall ensure that there is no interference or obstacle to exercising this freedom. However, the state can restrict the right for grounds of public order, decency, morality, health, and other state interests.
India does not have an official state religion.
Article 14--equality before the law.
Article 15--prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.
Article 16--Discrimination in public employment on grounds of religion is prohibited.
Articles 25 to 28--Right of Freedom of Religion.
Article 29-- assures that State shall not impose on a minority community any culture other than its own.
Article 30-- grants the minority community, the right to establish and administer their own educational institution.
The constitution, in the preamble, professes to secure all its citizen's liberty of belief, faith, and worship.
Karnataka’s government stand:
The order states that the state government can prescribe rules for curricula “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” under section 7(2)(g)(v) of the Karnataka Education Act, 1983 and that the state has powers under section 133(2) of the Education Act to issue directions to institutions for implementing provisions of the law. It states that school and college councils have the responsibility of maintaining equality on their campuses while imparting education.
My Opinion:
As a country, we have been trying hard to change the mindset of a large section of people who believe that a girl child’s education is a second priority. It is a fact that the education of girl children is still not a top priority in many communities. The controversy is hardening fault lines with non-Muslim girls wearing saffron shawls to protest. “This seeks to divide the students into two different communities which is very unfortunate”. More so, when students’ education was hit hard by the pandemic, now on resumption, the girls should not be made to suffer further on the issue of hijab. Until the courts come out with a decision, it would be desirable that the authorities let the girls attend classes. In many ways, the classroom of a government educational institution is truly representative of the society within which it is instituted, since it provides democratic access to the students from all sections of society. The inclusive nature of the classroom is one of the greatest contributions to the process of learning. It is this space that contributes to the civil discussions, debates, and conversations through which the process of thinking is initiated. It is these conversations that take place across the lines of gender and caste and religion and nationality that inaugurate the process of critical questioning. I personally believe that there are many more severe issues like unemployment, The pandemic still hasn’t ended, inflation, etc which should be focused on rather than focusing on the attires that the students wear. A school is a place for education and students should act like students, not “religious brand ambassadors”. Secular spaces like schools and colleges regularly see displays of religiosity, Wearing religion on the sleeve from the women on the street to the highest functionaries of the government is a part and parcel of daily life. In our country, we follow the concept of positive secularism and one must respect that. Women's fight is for the right to education and no one should be allowed to snatch it away. Finally, the courts are dealing with it and we shall wait for the judgments to be passed by the honorable courts.
Latest update: (16 March 2022 )
Karnataka HC hijab verdict 2022: Summary
Karnataka HC upheld the ban on the wearing of the hijab (headscarf) by students in schools and colleges in the State. It held that wearing the hijab is not an essential religious practice in Islam and is not, therefore, protected under the right to freedom of religion guaranteed by Article 25 of the Constitution. The court said it was a reasonable restriction that was constitutionally permissible. The judgment was delivered by a three-judge bench comprising Chief Justice Ritu Raj Awasthi, Justice Krishna S. Dixit, and Justice J.M. Khazi. The Bench also upheld the legality of the Karnataka government’s February 5, 2022, order prescribing guidelines for uniforms in schools and pre-university colleges under the provisions of the Karnataka Education Act, 1983. The court said that school uniforms will cease to be a uniform if hijab is also allowed. According to the bench, the restriction on hijab is “reasonable” and constitutionally permissible, which the students cannot object to. “There is absolutely no material placed on record to prima facie show that wearing of hijab is a part of an essential religious practice in Islam and that the petitioners have been wearing hijab from the beginning,” the court held. Suspecting some “unseen hands” triggered the “hijab imbroglio”, the bench observed that the PU college had followed a dress code since 2004, but never faced any opposition before. “We are also impressed that even Muslims participate in the festivals that are celebrated in the ‘ashta mutt sampradāya’,(Udupi being the place where eight Mutts are situated),” added the judges.
Questions about constitutional rights: The hearing in the case witnessed the formulation of crucial questions related to constitutional rights, including that under Article 25 (allows freedom of conscience, faith, and religion), Article 19 (right to free speech and expression), and the extent to which the state can impose fetters on the two rights. Petitioners argued fundamental rights can be curtailed to achieve three objectives – public order, health, and morality. However, the government order does not clarify the objective behind putting the curb on wearing the hijab. In the case of Article 25, the court declined to accept the petitioners’ argument that the hijab is an essential religious practice and the ban is “unreasonable”. HC said that the Article began with imposing restrictions on the free exercise of religion.
Information beyond the judgment: The court relied on the translation of the Quran by Indian jurist Abdullah Yusuf Ali to decide whether the hijab is a compelling religious practice. Not every activity associated with religion is an essential religious practice, the court held that hijab-wearing is not fundamental to Islamic law as it did not form the cornerstone of the religion. After going through Ali’s commentary, the court concluded hijab is not referred to in Quran. Rather, the court added, Ali’s commentary suggested wearing the hijab is only recommendatory because no penalty or penance is prescribed for not wearing it. Wearing of hijab was recommended as a measure of social security for women and to facilitate their safe access to the public domain. At the most, the practice of wearing this apparel may have something to do with culture, but certainly, not with religion, the court opined.
Lines by Dr. Rahat Indori :
'सरहदों पर बहुत तनाव है क्या, कुछ पता तो करो चुनाव है क्या, और खौफ बिखरा है दोनों समतो में, तीसरी समत का दबाव है क्या'.