The Hijab Debate

The politically motivated targeting of students in Karnataka for wearing hijab ensued a nation-wide debate in February 2022. This began with the State Government’s Order in February 2022 that provided for a ban of Hijab in the educational institutions.

It is pertinent to note that the order was brought right before the Uttar Pradesh state elections which were due from February 10-March 7 2022. The Karnataka Government’s Order, February 5 2022, barred attire that “disturbs equality, integrity and public order at educational institutions”.

The order whipped social discord and created a divide which was employed by the incumbent to secure electoral dividends. Uttar Pradesh being the most important state for securing a place at the centre, the discord provided a foundation for polarising the masses in the state.

To begin with, the narrative was built to portray the Muslim community as a backward community vis-à-vis others. A recent report, Islamophobia in Digital Age: A Study of Anti Muslim Tweets revealed that more than half i.e., 55.12 per cent of anti-Muslim content put on Twitter emerged from India.

Patriarchy remains entrenched in India. A huge majority of women are shackled and dictated by the patriarchal set-up to remain household slaves. The Global Gender Gap Report of 2022 has put India at 135th position out of 146 countries.

The same report states that it would take another century and a half for India to reach gender parity. If at all the government is to bring any sort of regulation it shall be for closing the gender gap instead of furthering a communal agenda.

The compulsion to wear or not to wear a specific attire by communities is a prevalent practice that should ideally wither away with time. The world is witnessing Iran’s women led movement against the forceful imposition of hijab.

However, the movementin Iran is not just about a particular attire. Instead, it is grand because it stands for smashing the spectre of patriarchy along with posing a direct challenge to the theocratic regime in place. This makes us reconsider the fact that all sorts of purdah systems in any religious institution are exclusive to women, and entails a strong patriarchy in the relics.

The order of the Karnataka State Government was challenged in the state’s High Court. The emphasis of the High Court was on the legality of State Government authority to issue an Order to regulate educational institutions under Karnataka Education Act of 1983 and the Government Circular. And to check whether the issuance of such an order was ultra vires to the freedom of speech guaranteed in the Constitution.

The Hon’ble Karnataka High Court found merit in the order wherein the legality was an issue and not the delicate social fabric of religiosity in India.

Following this an SLP (Special Leave Petition) was filed in the Hon’ble Supreme Court of India and a Division Bench was constituted to hear the matter instantaneously. The Bench delivered a split decision.

Justice Hemant Gupta upheld the Hon’ble Karnataka High Court’s decision whereas, Justice Sudhanshu Dhulia did not concur with Justice Gupta. Justice Gupta delivered a comprehensive judgement of over a hundred pages just three days before his retirement from the apex court.

The judgement cited a number of precedents. Justice Gupta in para 118 of the impugned judgement noted that “the students want to subjugate their freedom of choice of their dress to be regulated by religion rather than by state while they are in fact students of a state school”.

However, students were not ‘specifically directed’ by a religious organisation to wear the hijab. The enmeshment of religion, and culture is such in India that more often than not the latter is a direct carryover of the former.

On the question of essential religious practice, Justice Dhulia traced the etymology of essential religious practice from Dr. Ambedkar’s take in the Constituent Assembly “essentially religious” to the Ram Janambhoomi case. With acuity Justice Dhulia made a contextually sound analysis wherein he saw two students who were ‘asserting their identity’ by wearing hijab/headscarf.

Furthermore, he added that if the belief is sincere and harms no one there could be no justifiable reason to ban hijab in educational institutions. In his opinion while setting aside the Hon’ble High Court’s judgement Justice Dhulia concluded that removal of the veil before entering the classroom is perversion of the basic tenets of the Indian Constitution.

The test of what constitutes essential religious practices remains a slippery slope. The biggest deficiency of the test is the gatekeeping nature of the test. Wherein only the religious practice which is so intrinsic to the religion without which the religion would not remain the same were to be considered the essence of religion.

Apart from this, all religious practices could be discarded, and a selective few be retained at the discretion of the judge(s). The judge might or might not be the best person, given his or her own religious predilections to ascertain what pertains as an essential religious practice in a particular religion.

However, the intervention of the judiciary is welcome when there exists a gross violation of fundamental rights at the behest of an essential religious practice(s). But to decide matters such as whether hijab is essential to Islam or a turban (pagri) to Sikhism, judiciary is not the best route. Civil society should remain the final arbiter of such battles.

In the Niyamgiri mining case. The apex court delved into the essential practices test to ascertain whether the mining operation was an encroachment upon the forest dweller’s right to worship the Niyamgiri hills. However, in the case the onus of the final decision fell on the local body (Gram Sabha) to decide whether the mining operation would have violated the worshipping rights of the local inhabitants. The local body held the mining operation to be violative. But the fact that the test was to be applied could have been a toss-up situation.

While hearing the Sabrimala Temple case Justice D.Y Chandrachud had remarked at the essentiality doctrine stating that the judges are not expected to assume a theological mantle. Therefore, it is pertinent to interpret the facts of the instant matter under the shed of constitutionalism. This would reduce the scope of error and in turn would promote the idea of inclusivity and constitutional morality.

It is settled that the wheel of justice grinds slowly. The instant matter has been referred to the apex court for fresh hearing. However, Justice Sudhanshu Dhulia’s concern regarding the education of Muslim girls has animated itself.

As the reports accessed by The Indian Express reveal a 50 percent dip in the enrollment of minority women in Public University in Udupi, Karnataka, since last year. The delay in providing relief and using the flawed essentiality test to scrutinise the foundation of the Order has abridged the cultural, educational and constitutional rights of the minority students.

Social changes cannot be forced down the throat by the State. Such changes must emanate from society itself. For urgent relief, the Order must be rescinded and the status quo must be reinstated as the Order reneges on the Constitutional promise of justice, equality and fraternity at several levels.

The matter of Hijab remains subjudice and the Education Minister of Karnataka has expressly made it clear that the Hijab ban will continue till the apex court decides. However, a lecture delivered by Justice Ginsburg on ‘The Role of Dissenting Opinion’, is pertinent in the prevailing situation.

Justice Ginsburg quoted Justice Antonin “when history demonstrates that one of the Court’s decisions has been a truly horrendous mistake, it is comforting… To look back and realise that at least some of the justices saw the danger clearly and gave voice, often eloquent voice, to their concern”.

RISHAV SHARMA is a Delhi-based legal practitioner. Views expressed are the writer’s own.