Does my hijab make any noise: Hijab Saga

The hijab has become the subject of a fierce debate in India. It all began last month when six teenagers at a government-run college in Karnataka’s Udupi district began protesting after they were barred from classes for wearing headscarves. The institute said its uniform policy did not allow for hijab. Girls offered to use existing uniform’s dupatta instead arguing they need not to wear hijab. Later institute allowed to wear hijab in premises but instructed to seat in separate classroom.

India’s rape rates are high probably because women aren’t under gosha-pardah.”- Zameer Ahmeed Khan, Congress MLA.

Girls wearing their hijab in classrooms, do they have a fundamental right that intitle them to do so or schools have a right to ensure that their uniform rules are scrupulously observed? That’s the key issue I shall take in this article.

There are two basic questions which lie at the very heart of this dispute- Do girls have fundamental rights to wear the hijab in classrooms and would it be the breach of Article 25 of the Constitution of India if this is denied to them?

At the point, we have a judgment of the Kerala High Court that says that, they do have this right that hijab is an essential religious and in fact under Article 25 you can’t limit people’s right to freedom of conscience and freedom of profession of their religion unless it’s in public order in on the grounds of public order, morality or health which does on apply in this instance and “therefore to ban the wearing of hijab” would be a breach of Article 25.

The regulation or any limit has to be in a law and the law Karnataka government is invoking is state law which says, a secular outlook should be cultivated through religion. Barring people to even enter the gated, how come cultivate anything through religion?

Most important point here is that they admitted these young women to study in some of these universities while including in their rules that wearing a hijab was allowed and two months before the exams they stopped and changed the rule without notice and restricted to enter the premises anymore and various nonsensical grounds are pleaded there. What I think they trying to bring is the idea of no religion in schools.

Referring judgement passed by the court in 2015 (Amnah Bint Basheer vs CBSE) when it permitted the hijab to be worn for pre- medical exams but in 2018 (Fathima Thasneem vs State of Kerala), the same high court passed ruling where it said it could not order schools to permit the hijab. It was for each institution to decide on its own, “it is for the institution to decide whether the petitioners can be permitted to attend the classes with the headscarf and full sleeve shirt.”  The court refused to give any order so it means in terms of Kerala High court, we don’t have clear position as two different position taken three years apart.

Short answer to this when Article 14 read with Article 25 which is that one can’t act arbitrarily when implementing these rules. So here comes a point of false equivalence and purported idea being brought in which is not Indian secularism. This has become unwitting pawns of political forces whose ideology and ideas are the opposite of the ideas that define India in our Constitution as people wearing saffron scarves and seeking to enter the educational domain as in competition to hijab. 

Supreme Court in Shirur Mutt case, [1954] S.C.R. 1005 ruled, “that religion covers all beliefs and practices integral to religion.”

Is wearing of hijab integral to Islam and can judges being in law decide what is integral in Islam?

In relation to this Sabarimala judgment, Triple Talaq judgment where judges ultimately decide with experts’ opinion, examine.

Justice Chandrachud and justice Nariaman made extremely important point Shayra Bano v. Union of India and Sabarimala judgement that religion has to be subject to fundamental rights and Article 14 right trump anything else.

So, denial of hijab is a breach of two critical articles of our constitution i.e., Article 14 and Article 25.

Do schools have a right that its prescribed uniforms must be worn and hijab is not the part of that prescribed uniform then it cannot be worn? Law of Karnataka education, 1983 which says that cultivating a scientific and secular outlook through education and at best that’s the phrase. Public order more significantly in the light of the constitution is challenged here. Article 12 applies to government institution and meant to act in a manner that is at higher threshold than private institutions. Convent institution banning hijab is the potential violation of Article 15 as they are governed different from government institution, they must make rules keeping in mind to meet legal and constitutional standards.

As a secretary to Universal Declaration of Human Rights (UDHR), we are subject in India to all the terms of human rights law and therefore banning of hijab is not just breach of Indian Constitution but also UDHR (Section 18). What I believe the entire issue should be discussed from the point, whether the rules imposed by any educational institution can override the fundamental rights guaranteed to the citizens by the constitution, or not?

Will the admissibility of the hijab or the right to deny it in hinge on whether the Karnataka High Court believes its integral to Islam?

In conclusion, the hijab has remained a questioned symbol with different meanings to several groups of people. The primary question has been if the hijab is a symbol of liberation or oppression for Muslim women. Looking to empower women then one should not be denying them education and if one does not want them to wear hijab then empowering them so that there is any patriarchy binding them into particular types of clothing that they have the ability to earn on their own leave these behind if must and do make choices then those must be respected. Battles over religion has been fought over women’s body as subjects.

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References

1. https://indianexpress.com/article/opinion/columns/tavleen-singh-writes-karnataka-hijab-row-muslim-women-controversy-dress-code-7769774/
2. https://www.bbc.com/news/world-asia-india-60384681