A critique of the Hijab Judgment – Perspectives and Dimensions examined

By Adeel Ahmed

We all know the story of Nobel Laureate, Malala Yousafzai, the Pakistani hijab-clad girl who took a bullet in her head, just so that she could go to school. The plight of Indian Muslim women students in Udupi, Karnataka, is near about the same, whove been asked to choose between their religion or education, in light of the recent judgment passed by the High Court of Karnataka, stating that the "hijab is not an 'essential religious practice in Islam", , while also upholding the Government Order in question which prescribes a uniform to be worn, if prescribed by the schools concerned.

Religiosity of a Constitutional mandate ?

The court has observed that regard being had to the kind of life conditions then obtaining in the region concerned, wearing hijab was recommended as a measure of social security for women and to facilitate their safe access to public domain. It has stated that at the most the practice of wearing this apparel may have something to do with culture but certainly not with religion.

It is hereby relevant to note that of, the various questions of Constitutional importance, in the Sabarimala case which is pending on the issue of entry of women in the Temple complex, the Supreme Court shall also decide whether at all Courts are to sit in decision over religious practices, belief or faith. But then time and again, as has been observed in various cases in the recent past, that judges have tried to emote clerics in their judgments and have tried to propound the essentiality of various religious practices on the basis of religious scriptures and texts. This is an unnerving trend which has found its way into the sanctum sanctorum of Courts, as has been recently seen in the triple talaaq case, or the Shayara Bano case, where question of maintenance and alimony of the Muslim woman was sought to be answered in light of the Qur'an and associated scriptures of hadis. By way of the latest pronouncement by the Karnataka High Court holding that the "hijab is not an essential religious practice", the Indian Court by entering into the domain of interpretation of religious practices and beliefs has again stepped onto thin ice.

Which are more fundamental: Rights or Duties ?

As per Article 14 of the Constitution of India, any law being discriminatory in nature has to have the existence of an 'intelligible differentia', meaning that any such difference has to be reasonable like for instance no private person can arrest another person whereas a police officer has the power to do so. And, any such difference if at all, must bear a rational nexus with the object sought to be achieved. The object as has been claimed is to maintain public order in the institutions.

However, the authorities have failed to provide any nexus on how the public order will be disturbed if Muslim women enters the institution's premises while wearing hijab. This being the case, the classification based on the religious attire which is to comply with their religious practice does not have the nexus with the object sought by the Government Order, i.e. of the maintaining the public order. It is apposite that by seeking to draw an unreasonable distinction in the form of two categories of girl students viz., those who wear the uniform with hijab and those who do it without, and that would establish a sense of 'social-separateness', the court has trespassed the finer principles of Article 14, and the larger fundamental freedoms guaranteed of the Constitution of India.

This apart, the court has stated that it is impossible to instill the scientific temperament which our Constitution prescribes as a fundamental duty vide Article 51A(h) into the young minds so long as any propositions such as wearing of hijab or bhagwa are regarded as religiously sacrosanct and therefore, not open to question. The Court has further observed that Article 51A(e) of our Constitution imposes a Fundamental Duty on every citizen 'to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women'. Is not the school premises the foreground for development of an individual and the impressionable & (in)formative years of a person to imbibe and inculcate secular values. Can a scientific outlook not be achieved because what is veiled is the face and not the fertile mind underneath it ?

Tinkering with the 1st Amendment of US Constitution :

This judgement puts to test the scope and extent of religious freedoms, and the expression thereof in public places. The High Court has heavily borrowed from Western concepts of freedom of expression and right to conscience and the challenges meted thereto by the idea of 'Secularism', as propounded by the Constitution of India. That it is this reasoning which has to be examined now before the Supreme Court of India, and that whether the court has been correct to place exclusive reliance on the Western and European notions of secularism and individual liberty, and whether the court has been right in its interpretation thereof. For instance, the court in the impugned judgment has sought to draw inference from the famous case of Tinker v. Des Moines Independent Community School District, 393 US 503 (1969). The said case was in fact a landmark decision by the US Supreme Court that defined First Amendment rights of students in US public schools. The Tinker test, also known as the "substantial disruption" test, is still used by courts today to determine whether a school's interest to prevent disruption infringes upon students' First Amendment rights.

The Supreme Court's 7-2 decision held that the First Amendment applied to public schools, and that administrators would have to demonstrate constitutionally valid reasons for any specific regulation of speech in the classroom. The court observed: "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

Justice Abe Fortas wrote the majority opinion, holding that the speech regulation at issue in Tinker was "based upon an urgent wish to avoid the controversy which might result from the expression, even by the silent symbol of armbands, of opposition to this Nation's part in the conflagration in Vietnam" .

The Supreme Court found that the actions of the Tinkers in wearing armbands did not cause disruption and held that their activity represented constitutionally protected symbolic speech. Thus, if any semblance were to be drawn to the facts of the instant case, it can be held that the students in question were only silent practitioners of 'hijab', and never in any way, by their conduct sought to disrupt the functioning if the school.

Cultured Curriculum

The Karnataka High Court has held that schools have the authority to prescribe a curriculum and as such, schools and the educational institutions have the power to insist on a uniform sans any kind of religious attire, apparel or symbol, as directed by the assailed Government order. If that be the take, then is the recent decision of the Gujarat government to include the Bhagavad Gita in the school syllabus for Classes 6-12, justified in being advancement of a culture or religious ethos?

A circular issued by the Gujarat state government in this regard said the idea is to "cultivate a sense of pride and connection to traditions". Therefore, if an Order may resort to preserving non-Islamic traditions legitimate, then can the practice of a veil/scarf over the head, too difficult to palate to the Indian Constitutional aphorism. Like a learned submission before the high court, was that if Sikhs can don the turban in the army, then why can't the hijab be accommodated in a conducive and inclusive educational environment. After all a "Shaheed" is returned to his or her abode for last rites, as per the beliefs and religious practices of the martyr's family and that we as a nation take tremendous pride in the tribute to the departed soul's honorary last passage.

In conclusion, there is an old African adage that if you educate a man, you educate an individual; but if you educate a woman, you educate a nation. It remains to be seen what weighs more with the Court : freedom of education irrespective of conscience or belief and or for an exclusive world of education bereft of any real world diversity by means of complete uniformity.

(The author is an advocate-on-record at the Supreme Court of India)

Source: IANS