Karnataka HC on hijab row and the bigger debate of Uniform Civil Code

While activists, lawyers and academics across the nation have expressed solidarity with the Muslim girl students of Karnataka, those in favour of the hijab ban have re-ignited the issue of UCC

The Karnataka High Court, in an order last week, barred students from wearing any kind of religious dress, regardless of their faith, in educational institutions. The court's order came after the month-long protests in Kundapura town of Karnataka's Udupi district by students of Government Women’s Pre-University College, who were not allowed to attend classes wearing the hijab. The issue escalated after some students in saffron scarves started protesting against wearing hijabs.

The BJP-led Karnataka state government issued a directive on February 5 backing the order by several educational institutions, and said, “Clothes that disturb equality, integrity, and public law and order should not be worn.” It stated that wearing a headscarf is not an essential religious practice for Muslims, that it can be protected under the Constitution of India.

Filing a petition in the high court against the state government's directive, Muslim girl students argued that the ban on headscarves violates the fundamental right to equality. They said that students who attend wearing a hijab or headscarf cannot in "any manner" be said to be a practice that disturbs 'public order'.

Now, a bench of the Karnataka High Court comprised of Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and J M Khazi will decide whether or not wearing a hijab is an essential religious practice.

Many activists, lawyers and academics across the nation have expressed solidarity with the Muslim girl students of Karnataka, saying that the ban on the hijab violates the freedom to religion and equality. However, many others, including the ruling BJP party in the state, have supported the hijab ban, and have gone a step further by promoting the idea of implementing the uniform civil code. The issue has re-started the buzz over the implementation of such a code in the nation.

What is the Uniform Civil Code?

The Uniform Civil Code is a proposal to formulate and implement secular personal laws that apply to all citizens equally, regardless of their religion. UCC, which comes under Article 44 of the Constitution, calls for the formulation of one law that would be applicable to all religious communities in matters such as marriage, divorce, inheritance, and adoption.

Article 44, one of the Directive Principles of State Policy to address the discrimination against vulnerable groups and harmonise diverse cultural groups across the nation, says that the state “shall endeavour to secure a Uniform Civil Code for the citizens throughout the territory of India.”

While the origin of UCC dates back to colonial India, when the British government first submitted the draft in 1835, the Uniform Civil Code has been a key agenda of the ruling BJP, as the issue was also included in the party’s 2019 Lok Sabha election manifesto. The BJP-led central government has also been pushing for a legislation for the UCC in Parliament.

The saffron party has argued that implementation of the UCC would remove all inequalities and create a gender-equal society. The minorities, on the other hand, say that the code would lean towards Hindu personal laws.

The Hindu Code Bill, whose first draft was submitted in 1951 after the Constitution was adopted, was adopted in 1956 as the Hindu Succession Act. The Bill reformed the Hindu personal law relating to intestate or unwilled succession among Hindus, Buddhists, Jains, and Sikhs. The amendment gave women property rights in their fathers' estates. An amendment to the Act in the year 2005 elevated women to Class-I heirs, giving daughters a share in the father's, equal to that of the sons.

“There are no equal rights for women even in the Hindu code. Even if there’s a right on paper, it is never translated in reality,” Kavita Krishnan, the secretary of All India Progressive Women's Association (AIPWA), said.

While the Hindu personal law has been amended in India, there is no such Muslim Code Bill in the nation.

The Supreme Court of India has always called for the implementation of the Uniform Civil Code in the nation, the need of which first arise in Independent India during the Shah Bano case. The debate on UCC started for providing equal protection of laws to everyone despite their religious belief. A resident of Madhya Pradesh's Indore, Shah Bano was refused payment of alimony by her ex-husband after divorce. The right to alimony is guaranteed to woman of all religions except Islam. According to Sharia law, or Muslim personal law, a woman is guaranteed alimony only 90 days after the divorce.

The Supreme Court, in its judgement in favour of Shah Bano, said, “It is also a matter of regret that Article 44 of our Constitution has remained a dead letter… A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies."

However, after backlash, the SC's judgement was overturned by the then Central government led by Rajiv Gandhi, who passed the Muslim Women (Protection of Rights on Divorce) Act 1986, restricting the rights of Muslim divorces.

Talking about the Shah Bano case and how the call for UCC started at that time, Krishnan said, “There was politics played out.”

“Uniformity will not help women. Women, in general, are denied maintenance in India. She (Shah Bano) was being denied maintenance because of the patriarchal structure.”

Madras High Court Advocate N Kavitha Rameshwar, talking about the complications in the implementation of UCC, said, “There seem to be too many religious practices, and beliefs, that are governed by personal laws, and unless we are all ready to give up everything that we as a society are used to, we cannot have UCC.”

“Marriage, divorce, inheritance, these are not concepts that can be regulated strictly by uniform laws, because they are all part of a personal lifestyle which is interwoven within religious identity,” the Advocate explained.

Rameshwar added, “What is the purpose of the uniform civil code? The idea is that everybody should be governed uniformly, but India is a secular country. Secularism in western nations means that the state has no religion, whereas the Indian concept of secularism is ‘tolerance to all religions.’ This means we tolerate all religions, respect their practices, and live in harmony. Such harmony does not necessarily have to come only when all of us are governed by a singular (personal) law.”

The ruling BJP has multiple times argued that UCC will create a gender-just society. On this, Krishnan, who signed the open letter which condemned the ongoing row over the hijab ban, said, “The ban on the hijab is an example… It tells us what uniform civil code means in their (BJP) eyes.”