Political Diary
New Delhi, 18 October 2022
Hijab
Controversy
FROM ‘US’ TO ‘THEM’
By
Poonam I Kaushish
What’s in a dress? Nothing, it’s a form of clothing, but the
maelstrom over the innocuous Muslim hijab
(headscarf) banned in pre-university colleges in Karnataka by the State
Government February and upheld by the High Court March politically spells a lot. Complicated by the split verdict of
the Supreme Court Thursday. Leading to nationwide
churning.
While Justice Gupta upheld the High Court order terming
religion a private affair and “religious belief cannot be carried to a secular
school maintained out of State funds… freedom of religion is subject to
restrictions(including) equality before law under Article 14. Adding “ban was
only to promote uniformity, oneness and encourage a secular environment in
classrooms. The State did not deny anyone the right to education but it could
not help if a student chooses not to attend classes.”
Obversely Justice Dhulia found it to be violation of the right to
privacy, dignity and religion. Underlining the Constitutional right to choose asserting, “It
is ultimately a matter of choice and Article 19(1)(a) and 25(1) nothing more, nothing
less. Girls already face many hurdles in accessing education and would find it
tougher if the ban order was allowed as all that matters is education of the
girl child. Therefore we have to see whether we are making the life of a girl
child any better by denying her education, merely because she wears a hijab.”
Pertinently, both judges steered clear of examining whether
hijab is an essential religious
practice yet it points to the complexity of the issue and its facets:
Constitutional rights, religion, right to choose, powers of State to impose reasonable restrictions on
freedom of religion and conscience, individual choice, community identity and
State’s duty to facilitate access to education. Underscoring, the obdurate
social problems arising from knotty interplay of religious, social, cultural
and political impulses.
Critics describe hijab wearing
as an anachronistic one that reduces faith to a set of rituals and anoints
judges as arbiters of religion. How can legal eagles be religious arbiters? Hijab is
an issue of value conflicts and clash of civilizations. It could perpetuate stereotypical, biased perceptions about
Muslim faith and role of women.
The existing patriarchal
system might lead women and girls to conform to societal expectations, even
when they limit their freedom. Also, legal bans or restrictions are akin to punishing
the woman herself which would further marginalize and perpetuate discrimination
or perpetuate harmful stereotypes. Besides, stigmatizing
Muslim women and prevent them from seeking redress.
Citing Ambedkar’s statement in the Constituent Assembly, “let
us keep religious instructions outside educational institutions”. Only essential
religious practice gets protection under Article 25 which guarantees citizens right
to practice faith of their choice.
Counters a Muslim woman “How can someone
ask us to keep away our modesty.... Both hijab
is our right while studies are equally important for us. We can give our lives
but we cannot leave hijab. Dictating
by law what women should or should not wear is policing women’s bodies,” added
another.
The Supreme Court in Shirur Mutt case 1954
held that “religion” would cover all rituals and practices “integral” to
religion, but in 2004 it held Anand Marg
sect had no fundamental right to perform tandav
dance in public. In 2016 it upheld
the discharge of a Muslim airman from the IAF for keeping a beard.
The Kerala High Court in 2016 dismissed a
plea by a Muslim girl student seeking permission to wear hijab stating collective rights of an educational institution would
be given primacy over individual rights. However another Bench upheld the right
to wear it even as the State Government said it would significantly affect
secularism.
Questionably, is hijab
an essential religious practice to seek protection of Article 25? Can the right
to wear it be claimed as part of freedom of expression under Article 19(1)(a)
and part of right to privacy and dignity under Article 21? Is prescription of a
uniform in an educational institution an unreasonable restriction?
Is hijab an
essential religious practice in Islam? Is there any fundamental right to wear a
religious dress in a classroom where a uniform has been prescribed for all
students? Will imposing restriction lead to deprivation of education for Muslim
girls, who are already facing social backwardness?
Primarily the Islamic dress is seen as
being incompatible with Western values, as symbols of religious obscurantism
and oppression of women. Instead, they advocate values of Enlightenment
liberalism, secularism and equality of women. A more extreme view is that which
is freely chosen.
Further, is placing individual ideologies before national
good wrong? Yes, if it on grounds of security as
an anti-terrorism measure. Globally, UK,
France, Austria, Belgium, Denmark, Bulgaria, Netherlands, Germany, Italy, Spain,
Switzerland, Sweden, Norway, Russia etc have banned hijab, burqa and niqab
from public schools, hospitals, public transport
and public places. In France and Turkey the emphasis is on the secular
nature of the State hence the ban.
Ironically even Muslim-majority nations like Kosovo,
Azerbaijan, Tunisia, Morocco, Lebanon have outlawed the hijab and burqa in
varying degrees. Egypt and Syria have banned the face veil in universities. They argue the Quran does
not clearly stipulate the use of hijab or
niqab.
Over the past few years there has been an increasing sense
that space for liberty is becoming narrower shown by repeated incidents of bans
by State Governments and self-appointed censors thereby promoting religious intolerance. While Western
countries maintain a wall of separation between the State and religion, in
India the State maintains a “principled distance” from religion.
Towards that end the Government should have a balanced
conversation and underscore equality for all where diversity is not just
tolerated but fully respected and celebrated. This requires joint efforts by
States, religious authorities, faith-based and civil society organizations with
a view to ensuring non-discrimination and gender equality, denouncing any
advocacy of hatred that incites to violence, discrimination or hostility as
well as standing up for the rights of all persons belonging to minorities to participate
equally and effectively in cultural, religious, social, economic and public
life.
Clearly, in a milieu of competitive democracy whereby politics
based on religion has better chance of polarising people, time has come to stoking
seeds of rabid communalism. It stands to reason Muslim girls should abide by
schools uniform rules as hijab can transform them into UCOs (unidentified covered objects),
which are likely to turn them from an ‘us’ to a ‘them’. At the same time the hijab should not be used as a means of
applying social pressure on people. Remember, there is no mysticism in the
secular character of the State. It is neither pro God or anti God . ----- INFA
(Copyright India News & Feature
Alliance)
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