Monday, June 27, 2022

Hijab Ruling: How the Indian judiciary has tied itself in knots!

Image: Courtesy Live Law

Karnataka High Court has upheld ban of hijab by a few educational institutions in Karnataka. The High Court arrived at the decision after 11 days this week. While rendering the verdict, the High Court formulated a few questions and chose to answer them itself. 

Q1— Whether wearing hijab is an essential religious practice under Islam;

Q2— Whether wearing hijab is essential for Freedom of expression and right to privacy;

Q3— Was the GO of February 5 issued without application of mind and manifestly arbitrary.

In providing answers to these questions, the Court found wearing of hijab by Muslim women was not part of essential religious practices under Islam and prescription of school uniform was only a reasonable restriction which students could not object against. 

The Court also endorsed that the Government had power to issue Government Orders. 

Addressing existence of separate personal law for Muslims, the Court took refuge to Islamic religious texts to declare in favour of institutional uniforms over wearing hijab. 

A section of Islamists however have since declared the verdict unacceptable. The adjudicating judges too have been threatened with grave consequences. 

It’s interesting though that the Court of a secular nation quotes religious texts to peddle its judgement. It contrasts starkly with the Sabrimala verdict against the faith of Ayappa devotees where secular provisions like “gender equality” were enforced by the Supreme Court. Our honourables of course can’t be lampooned for discrimination. 

One is not sure if quoting religious texts has helped or pushed our judiciary into a quagmire. They could face a volley of petitions from adherents of communal personal laws on trivial issues. This not only hurts the constitutional morality of a secular country, it also has the potential to shut down schools and State, like Karnataka did, or torch riots in other parts of the country. 

Further India’s judiciary has no business to take refuge under religious texts when it was religion which caused one-third of India to be severed in 1947 and allowed hardliners to get their Pakistan, and later Bangladesh. 

Are we to believe if Hijab had been upheld in the eye of Holy Book, the judiciary would’ve had no option but to give precedence to Hijab over institutional mandates and communal harmony? Somehow, justice based on copybook Islam doesn’t appear palatable in a post-partition secular India. More so when radical Islamists’ shadow is spreading over our secular structure. So all the cost we paid for the Partition, allowing Muslims to have a land for themselves, amounted to nothing? 

Look at it this way: Muslims were given a choice to have a land for themselves. Yet many stayed back. They stayed back because they preferred an emerging India and its laws, later embossed in the Constitution, over Islam. In other words, they upheld their National Identity over Religion! Who else other than rgw judiciary which out to have made it loud and clear?

Not that the Indian Constitution has not empowered the judiciary with such secular provisions. Even freedom of religion under Article 25 is not absolute freedom. Its subject to public order, morality and health by the Constitutional prescriptions. The refuge under which the Karnataka High Court passed its Hijab judgement, thus, is likely to leave India’s conscientious citizenry insecure and disenchanted. 

What type of Deprivation?

As partition based on religion mathematically necessitated present Bharat to be culturally non-Islamic in entirety, relevance of Islamic texts in deciding social issues like hijab in present Bharat amounts to being hostage to Islamism. It’s given preponderance over other religions. Bharat is home to people subscribing to various faiths who didn’t call for partition of undivided Bharat. In spite of that, social issues of post-partition India being adjudicated based on Islamic texts amount to discrimination against people of other faiths. It gives prepotency to Islam over others.

Critics would say when all are equal in the eyes of the Constitution, under Article 14, where’s the question of one faith getting predominance over others? But that’s exactly what has happened: In Sabrimala, the religious legacy was dumped in favour of gender equality. On the contrary, in the Hijab verdict, judiciary has based its judgement on the basis of religious texts. 

Why Insecurity?

Another argument put forth was that Hijab was meant to protect women from molestation and rape. Or in other words, without Hijab a woman is vulnerable to molestation and rape. By that logic, every other community tomorrow might ask for Hijab to protect its women. What if a fundamentalist tomorrow says that a non-wearing Hijabi had invited rape on herself? T

The Court ought to have made sure that this argument in non-validated in harsh words. This is not the empowerment of women that the Government of India shouts from the rooftop—and it’s not stressed by our honourables. If anything, a hijab or burqa objectifies women as sex objects. As Indian Muslims have chosen national identity over Islam, they ought not to be insisting on Hijab disallowed by a few institutions. 

PDP chief Mehbooba Mufti said in Srinagar on March 15, “On one side, we make big claims on women’s rights and their empowerment and on another, we don’t even give them the right to wear whatever they want; this right shouldn’t be with the Courts”. While choice of attire is indeed the individual’s prerogative and should not ideally come under the jurisdiction of Court, it doesn’t remain a mere choice if a religious tag is pasted to it. Shouldn’t Mehbooba have condemned those who shoe-in religion in such matters?

Asaduddin Owaisi, drawing inane comparison between hijab and Sindoor / Tilak etc. expressed disagreement with Karnataka High Court’s verdict conveniently overlooking the fact while Hijab is attire, a Sindoor/Tilak/Mangalsutra is an accessory. They don’t make prescribed uniform redundant as Hijab was deemed to have done. We are not even coming to how behind a Hijab, a terrorist could blow up a classroom or a cheater uses notes to have an unfair advantage over other students. As per the argument of Sikhs wearing turbans, there are also restrictions on him: For example, they too are asked to wear helmets while driving a two-wheeler. Kripan, likewise, can’t be carried everywhere. 

I have no doubt that while fundamentalists and radical organisations like PFI could make misleading comments, there are countless Indian Muslims who would prefer the ethos of the civilisation which is distinctive to Bharat. For god’s sake, let’s not fall into the trap or the matrix set by Islamists.

Debjani Bhattacharyya is a columnist who’s a keen observer of politics and social changes.. A communication-strategist by profession having special aptitude for analytical jackknifing of information, Debjani is a Pharmaceutical Engineer & a Management Professional by her credentials.

Analysis of data & information for generating insights for policy planning is a passion while her other significant area of interest is the Constitution of India and its interpretations thereof. She’s a voracious reader with enormous affinity towards Classics of Bengali Literature. She is an opinion-maker on social media through her  blog, twitter and facebook.

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