Tuesday’s High Court judgment places Muslim girl students wearing the hijab in a dilemma — do they wear the hijab and stay out of class? Or, do they remove it and sit in class or write examinations (currently on) in several educational institutions?
While they grapple with their decision, the pro-hijab ban supporters led by the BJP and other Sangh Parivar activists are unsurprisingly exulting in their victory. For, though the hijab ban was decided within the hallowed halls of the Karnataka High Court, none can deny that the controversy itself was the outcome of the overarching narrative dictated by the BJP to assert the will of the majority community over the minorities.
Sections of the majority Hindu community will now see the judgment as empowering them to forcefully prevent the wearing of hijab in all schools, as one witnessed during the period between the interim order and now.
The order has also encompassed all schools – government and private – whichever has prescribed a uniform.
Question of faith
The fulcrum of the judgment is on the question of whether the hijab constitutes an essential part of the “Islamic faith” under Article 25 of the Indian Constitution. The plea raised by the petitioners has been dismissed by the court which has declared that the wearing of the hijab is not an essential part of the Muslim religion.
According to the judgment, an essential part of any religion is something that which if restricted or proscribed alters the fundamentals of the religion. Not wearing the hijab does not alter the essentials of the religion and therefore it is not necessary for students to wear it. And, in the context of a prescribed uniform, not wearing it amounts to a “reasonable restriction”.
While the reasoning is straightforward, the logic of the judgment throws up questions regarding religion and what constitutes its essential nature. Every religion has a set of stipulations meant to be adhered to by its followers. In reality, an individual subscribing to a religion may not follow all the stipulations depending on their wish.
In the case of the hijab itself, not all Muslim women wear it even if the pious among the community mandate the attire. Does that change the essential nature of a religion? Or, for that matter, if a Hindu woman does not apply the kumkum on the forehead or wear flowers on her hair, does it in any way alter the fundamentals of the religion? Obviously not, as finally, the decision is that of the individual.
Courts have generally attempted to test whether a “purportedly religious command is constitutionally protected” by testing “whether such a belief is essential to that religion”, wrote senior lawyer Suhrith Parthasarathy in The Hindu on the Supreme Court’s Sabarimala judgment.
In that case, quoting Supreme Chief Justice Dipak Misra, Parthasarathy “found that the practice of excluding women aged between 10 and 50 years from the Sabarimala temple is dispensable, in that the ‘nature’ of the Hindu religion would not be ‘fundamentally altered’ by allowing women to enter the temple.
Judicial authority over rationality
Parthasarathy pointed out that the dissenting judge Indu Malhotra said the power of judicial review ought not to accord to courts the authority to judge the rationality of a matter of faith. “The issue of what constitutes an essential religious practice,” she wrote, “is for the religious community to decide,” she purportedly said in the judgment.
The Federal Webinar: The othering of Muslims is a reality
Looking at this in the context of the hijab judgment, while there is one view that the Muslim religion is not altered by banning hijab from classrooms another equally compelling view is that it is for the community to decide whether it is an essential practice or not.
It is probably necessary to view religion as something not written in stone but a set of beliefs and practices that are fluid and take on the form imposed by those interpreting it across the world – one among many reasons why so many sects and divisions exist within each religion.
The court has also relied on the Shayara Bano judgment (on triple talaq) to buttress its position on essential practices of a religion though it is not clear what point the judgment was attempting to make and how it compared with the hijab case.
In that case, triple talaq (talaq–e-biddat) was banned and it did nothing to alter the religion. The judgment pointed to Muslim nations around the world where triple talaq (instantaneous divorce) has been banned.
What has been not been stressed is that there is an alternative recognised form of talaq (talaq-e-ahsan) that continues to be in vogue. In this, divorce is not instantaneous and the decision is spread over a few months giving either partner time to change their minds. This system incidentally continues.
Harder on girl students
The judgment banning hijab, meanwhile, is bound to hit Muslim girl students hard, especially those studying in government institutions. For, they are not of an age group (above 18) where they can take independent decisions. They are entirely dependent on their families which send their wards to government schools and colleges as many are from economically weaker sections.
In the case of conservative and religiously inclined families, it is possible that they may restrict their girls from going to schools, preferring to go by religious diktat on the hijab rather than getting them educated. That would amount to a denial of opportunity and subvert the larger goal of universal education in a literacy-starved country.
As Justice Chandrachud stated in his Sabarimala judgment, quoted by Parthasarathy, “The Constitution exists not only to disenable entrenched structures of discrimination and prejudice but to empower those who traditionally have been deprived of an equal citizenship.”
Sadly, the hijab judgment appears to have missed this point.