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Hijab judgment raises more questions

The Karnataka High Court’s judgment upholding the state government’s order banning Muslim girls from wearing the headscarf or hijab in schools reflects a narrow view of the issue of religious and individual freedoms and, by extension, the question of secularism in India. The court has based its argument on several flawed interpretations. First, that wearing the hijab is not essential to Islamic practice. Second, that an institution’s right to prescribe a uniform does not violate Articles 19 and 24, which concern freedom of expression and privacy, respectively. It is interesting that the court has based its first explanation on a paper by a history major at American University who concluded that hijab-wearing was not intrinsic to Islam. Though Islamic scholars scouring Quranic texts and Hadiths, the record of Prophet Mohammad’s sayings, are likely to be able to answer this question with any degree of authority, the issue is beside the point. There are plenty of social practices intrinsic to religions — Hinduism included — that do not find explicit mention in any religious text but are nevertheless evident in daily life. When it comes to the headscarf, the court had only to consider the fact that the headscarf is worn by millions of Muslim women not just in India but across the Islamic world, from Malaysia and Indonesia to Algeria. They attend school, work in factories, attend Parliament and even play football and hockey with their heads covered.

Once this observable fact is established, the real issue then comes down to the right to freedom of conscience and religious choice (Article 25), which is limited only by the constitutional caveats that law and order, morality and health should not be violated. First, wearing a headscarf cannot be construed as impinging on law and order or morality. Second, the practice is open to personal choice. Just as many Sikh men choose to keep long hair and wear a turban in consonance with the prescriptions of their religion, many do not. But no institution in India curbs the Sikhs’ right to choose either way. Instead, the religious practice has been amalgamated into institutions that require uniforms to be worn — such as schools and, most notably, the defence forces — by prescribing specific colours for turbans as part of an overall dress code. It is unclear why the college authorities in Udupi could not have extended a similar sensible and non-confrontational policy towards the headscarf. The court’s argument that the Kendriya Vidyalayas policy allowing the practice concerned a central government institution and states need not toe this line is also conceptually flawed. Constitutional guarantees are universal to all Indian citizens, irrespective of their religion or caste, and cannot be cherry-picked by states to suit the particular political ideology of the government in power.

This judgment points to the same worrying trend of particularistic secularism that has restricted Muslims from Friday prayers in permitted public places in Gurugram, a case that, like this one, is before the Supreme Court. At a time when “development” is the mantra of nearly all political parties, restricting Muslim women’s access to education is also illogical. Nearly half of India’s Muslim women are illiterate, a circumstance that urgently needs to be improved if India is to progress. Forcing them to stay at home over a 36x36-inch piece of cloth is bizarre and reactionary.