By Lokendra Malik and Wazida Rahman
The Karnataka High Court’s judgment on the hijab issue sends a wrong message to minorities at a time when they are already facing many difficulties. Several constitutional pundits, religious scholars and secular intellectuals believe that the ruling is deeply flawed, passed in violation of fundamental constitutional principles and secular values.
The judgment upholds the validity of the government order which allowed some educational institutions in the state to ban wearing of the hijab in the interest of public order and the unity and integrity of the country. The Court has applied the essential religious practices test to uphold the restrictions. But it has failed to maintain a balance between the fundamental rights of citizens and the collective interests of society.
For centuries, the hijab has been an integral part of Islam, and the High Court ruling disturbs the mental peace of minorities not only in Karnataka but across the country. A plural society is based on social diversity and the Court has failed to provide a reasonable accommodation to the minorities in this case. Now, the matter has reached the Supreme Court in appeal. The minorities are quite hopeful of getting justice from the apex court.
Wearing the hijab has a historical background. The practice of purdah was seen as a standard of status in ancient times. Women belonging to the elite class practised this custom in 19th century India. The practice of purdah was observed by many women in Hindu and Muslim communities in the country. This was not traditionally observed by lower class women.
The hijab is a head cover coming from the Islamic concept of modesty and privacy. It is also seen in other religions such as Judaism (Tzuniut is used) and Christianity before Islam. The Islamic concept of hijab is most often expressed in women’s clothing. Hijab garments range from simple headscarves (called khimaar or simply hijab) to head-to-toe cloaks such as abayas and burqas.
Sara Slininger, a history teacher, in her writings said: “Many people outside of Islam have come to believe that Muslim women are being forced into wearing veils (hijab) by a predominantly patriarchal society; women who wear the hijab argue that it is their choice to do so. From the origins of veiling, the different styles, and how it is viewed in today’s world, we can get a better understanding of what the veil means to Islamic societies. Islam was not the first culture to practice veiling their women. Veiling practices started long before Prophet Muhammad was born. Societies like the Byzantines, Sassanids, and other cultures in the Near and the Middle East practiced veiling. There is even some evidence that indicates that two clans in south-western Arabia practiced veiling in pre-Islamic times, the BanūIsmāʿīl and BanūQaḥṭān. Veiling was a sign of a woman’s social status within those societies. In Mesopotamia, the veil was a sign of a woman’s high status and respectability. Women wore the veil to distinguish themselves from slaves and unchaste women.”
It is a matter of fact that the hijab is not exclusively demarcated in the Holy Quran. It is regarded as a personal and cultural traditional practice within the religion. Hijab in its countenance varies within the Muslim world itself and beyond. Islam sees the hijab as a part of modesty, respect, privacy and self-effacement.
Veiling became more prevalent in Islam because the practice was supported by Quranic verses. The hijab is referred to as a spatial partition or drape form. The Quran instructs both Muslim men and women to dress modestly, though there are disagreements on how those modest ways should be followed. The verses relating to dress use the terms khimār (veil) and jilbāb (a dress or cloak) rather than hijab.
The reference to modest clothing that appears in the Quran is mentioned in Surah Noor (24:31), which reads: “And tell the believing women to reduce [some] of their vision and guard their private parts and not expose their adornment except that which [necessarily] appears thereof and to wrap [a portion of] their headcovers over their chests and not expose their adornment [i.e., beauty] except to their husbands, their fathers, their husbands’ fathers, their sons, their husbands’ sons, their brothers, their brothers’ sons, their sisters’ sons, their women, that which their right hands possess [i.e., slaves], or those male attendants having no physical desire or children who are not yet aware of the private aspects of women. And let them not stamp their feet to make known what they conceal of their adornment. And turn to Allah in repentance, all of you, O believers, that you might succeed.”
The clearest verses on the requirement of modest dress are in Surah Ahzab Ayat 59, which says: “O Prophet, tell your wives and your daughters and the women of the believers to bring down over themselves [part] of their outer garments. That is more suitable that they will be known and not be abused. And ever is Allah Forgiving and Merciful.”
The hijab controversy started in early January 2022, in a government-run Pre-University College for Girls in Udupi, Karnataka. The College had disallowed the wearing of the hijab as violating its uniform policy. Six Muslim female students insisted on wearing the hijab to class on top of their uniform, arguing that the hijab was part of their faith and constitutional right. The College said its uniform policy did not allow the hijab. The girls offered to use the uniform’s dupatta to cover their heads, arguing they didn’t need to wear a separate hijab, but the College refused. It allowed them to wear the hijab on the campus but not in classes. They were found sitting in corridors and working with their notebooks.
Several students from the College then filed a writ petition in the Karnataka High Court on January 31. The petition sought the wearing of the hijab to be recognised as a fundamental right under Article 14 and Article 25 as it was an essential Islamic practice. On March 15, the Court upheld the restrictions on the hijab. The bench examined verses from the Quran to disagree with the students’ claim that wearing the hijab was an essential practice in Islam.
Here the question that arises is how can it be decided which part of Islam is essential to practice for freedom? It is always a matter of cautiousness when anyone interprets a divine uncodified (not codified by human) law where the meaning is not clear.
A few days ago, while criticising the Karnataka High Court’s ruling on the hijab issue, constitutional law scholar Professor Faizan Mustafa wrote: “Essential religious practices doctrine is erroneous and gives courts extremely wide powers in purely theological matters. It looks too simplistic to say this or that is not a core belief. But then should we privilege one practice over another? The insistence that essential practices must originate at the time of the founding of the religion is also absurd.” In comparison, he also said:
“If we go by the Karnataka High Court judgment that hijab is not essential Islamic practice because there is no punishment for not having hijab, it may lead to the conclusion that adultery and homosexuality are to be considered as haram (prohibited) as there are severe punishments for them under Islam. In spite of their decriminalisation, these will remain sins in the eyes of religion.”
In several countries, wearing the hijab is a matter of personal choice for a Muslim woman. Moreover, wearing it is not made a mandatory practice by shariah. But if some women by choice wear the hijab, nobody can force them not to wear them. Personal beliefs in terms of religion cannot be separated from a believer’s breath. Islam only asks its followers to dress modestly. Modesty is in the eye of the beholder. So, it is not convincing that some Muslim girl students are ordered to take out their religious beliefs and practices at the doorsteps of a school to follow its rules. However, their traditional religious practice of wearing the hijab is not violative of any of the reasonable restrictions mandated by the Constitution.
It was confirmed by one of the student protesters from the institute that wearing a headscarf was not mentioned as a problem by the administrators when she was admitted to the College a year ago. However, the institute was established in 1949. So, it generally makes sense to know why from 1949-2021 it was not an issue to wear the hijab, but in 2022, it suddenly became a total restriction. If the hijab is allowed in institutions run by the central government, why cannot it be allowed in states?
Given the above discussion, the judgment of the Karnataka High Court needs immediate examination by the apex court. The High Court has failed to accommodate the hijab as a traditional religious practice by Muslim women. The affected parties have rightly moved the Supreme Court in appeal.
This is not an ordinary case which affects the rights of a particular individual. In this case, the entire Islamic community is aggrieved. This case involves many significant constitutional issues relating to the personal choice of people, personal liberty, religious freedom and privacy and constitutional tolerance, human dignity and secular accommodation.
Thus, the apex court is duty-bound to protect the minorities from unnecessary harassment and humiliation and to restore their trust in the institution of the judiciary. The High Court ruling is fit for overruling by the apex court.
In the insightful words of Justice HR Khanna: “The idea of giving some special rights to the minorities is not to have kind of a privileged or pampered section of the population but to give to the minorities a sense of security and a feeling of confidence. The great leaders of India since time immemorial had preached the doctrine of tolerance and catholicity of outlook. Those noble ideas were enshrined in the Constitution. Special rights for minorities were designed not to create inequality. Their real effect was to bring about equality by ensuring the preservation of the minority institutions and by guaranteeing to the minority’s autonomy in the matter of the administration of these institutions. The differential treatment for the minorities by giving them special rights is intended to bring about an equilibrium, so that the ideal of equality may not be reduced to a mere abstract idea but should become a living reality and result in true, genuine equality, an equality not merely in theory but also in fact.”
—Lokendra Malik is an advocate, Supreme Court, and Wazida Rahman is Assistant Professor of Law, JB Law College, Guwahati