From the Bulli Bai controversy to the open calls for genocide, the India @75 express is now in Karnataka. “Clothes”, which are anathema to “equality, integrity, and public law and order should not be worn”, according to a statement issued by the Government of Karnataka in response to the hijab row. Moreover, the state government argued that prohibiting Muslim women from wearing hijab in educational institutions does not contradict the fundamental right to freedom of religion. They also cited sec. 133(2) of the Karnataka Education Act of 1983 to support their claims. Furthermore, they also cited the verdict of the Hon’ble Supreme Court in India in Asha Rajan and Ors. v/s State of Bihar and Ors. (2017). In the verdict, the court opined that larger public interest takes precedence over individual interest, not by negating it but by upholding the larger societal interest. V Sunil Kumar, the Minister for Kannada and Culture, declared that the hijab/burqa can be worn from home to the college, but not inside the premises of such institutions (The Indian Express). The government defends all these decisions passed into law by citing the purpose of the aforementioned act, i.e. to cultivate scientific and secular outlooks through education.
With the summary of such happenings covered, now, I would like to find context for the words issued by the Minister of Kannada and Culture (as quoted in The Indian Express) and evaluate their impact. I’ve emphasised the word ‘college’ because the students at the centre of this unnecessary issue are not school children, but adult citizens of the country who are not allowed to wear the dress of their choice. Citing the 2017 Hadiya judgement, matters of dress and food, of ideas and ideologies, of love and partnership are within the central aspects of identity, protected under Article 21 of the Constitution of India (“Protection of life and personal liberty”). So, how could the state dictate to adult individual citizens what they can wear and what they cannot wear? That a uniform is in place in certain institutions is understandable. But the Muslim students are just seeking the right to wear a headscarf compatible with the uniform, just like the Sikhs students have the right to wear turbans.
It’s worth noting here that both Sikhs and Muslims are religious minorities recognised by the Constitution of India. Sikh police officers and military personnel wear turbans in their professional places of work, in the media, and even on mountain peak while serving at borders. In each such scenario, the turban for the Sikhs is considered and accepted as compatible with their respective uniforms in all sorts of professions and public offices. Now, if a Sikh student takes admission in a college in Karnataka, will the state say the same thing? “You can wear turban till the gates of the college, but inside the college, everyone should be uniform”? Or should one see this statement as the regular cock-a-doodle-doo of Islamophobia in the guise of “cultivating scientific and secular outlook through education”?
Responding to the melee, BC Nagesh, the Minister for School Education asked, “what if someone comes to the college in shorts saying it’s hot? We can’t allow it” (The Indian Express). Why? What does the state have to do with what I wear unless I am causing harm to someone or limiting the same and equal rights to others? According to John Stuart Mill, “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others”, and here, I don’t see any harm, especially in globally accepted definitions of Liberty that are at the core of democratic laws in multiple nation states across the globe. Again, citing Hadiya judgement, what I wear is my choice. First, there was the ban on jeans inside temples. Now, there is the ban on the hijab in schools and colleges. Tomorrow, if they ban tight clothes and shorts in public places, what will you do? Well, don’t laugh at this question as it seems so silly in India @75. If Anti-Conversion laws can be passed in the guise of freedom of religion and if they can ban the hijab in the name of “cultivating scientific and secular outlook”, it is not very difficult for them to appeal to the misfeasance of law and perfect a carefully worded act that will ban tight clothes and shorts.
Another question that arises here is should the protesting Hindu students be allowed to wear saffron scarves under Article 25 (1) of the constitution of India? Well, I’d say no. Article 25 (1) of the Constitution of India provides freedom of conscience and the right to freedom to profess, practise, and propagate any religion. The article acts as a negative right, restricting arbitrary intrusion by the omnipotent state. However, at the same time, what all practices qualify this article is to be determined by the doctrine of essentiality, as perfected by the Hon’ble Supreme Court in the Shirur Mutt case (1954). I’d like to cite an example here. In 2016, the Supreme Court upheld the discharge of a Muslim pilot of the Indian Air Force for keeping a beard. Regulation 425 of the Armed Forces Regulation Act of 1964 (“425. Growth of Hair etc. by Air Force Personnel”) bars officers and Armed Forces staff from keeping beards and long hair unless it is done for religion reasons.
More specifically, this Regulation 425 (under “CH IX : Uniform” of the “Defence Services Regulation”) states that “Personnel whose religion prohibits the cutting of the hair or shaving of the face of its members will be permitted to grow hair or retain beard. However, such hair and/ or beards will be kept clean, properly dressed and will not be removed except on medical grounds or on application duly approved.” However, in the civilian realm, the court noted that keeping a beard is not a practice essential to Islam, and the petitioner was not able to satisfy the court with the argument that the practice of keeping the beard was in line with the exemption in the 425th regulation, congruent to Art.15(1). On the other hand, it is permissible for a Sikh officer to keep a beard as it comprises an essential part of their religion.
Coming back to the hijab, the Quran mandates it for Muslim women, especially in verse 31 of the 24th chapter and verse 59 of the 33rd chapter. The former mentions “khumur”, a veil covering the head, and the latter is concerned with “jalabib”, a loose outer garment. Hence, the practice of veiling or hijab is an essential part of Islam. Also, the Hon’ble High Court of Kerala directed CBSE to employ additional measures to check students who wear their religious attire that contradicts the prescribed dress code determined by the CBSE for All India Pre-Medical Entrance Examination (Asiya Abdul Karim case (2015) and Amna Bint Basheer case (2016)).
Having to refer to the religious freedoms of one minority and what the law states to give provisions on religious grounds and governed by faith, while in the same breath seeing no such religious freedoms being maintained, and in fact limited by law, is problematic to say the least. One should not have to compare the religious rights of Sikhs in what concerns attire and appearance with the religious rights of Muslims. And yet, just days ago, a college in Bangaluru asked a 17-year-old female Sikh student to remove her turban to remain in compliance with the High Court order, with the college and the father of the girl dialoguing via email to find a common ground. As it seems, the question of uniform, dress code and what is permissible to wear at places of work and education is already having a cascading effect.
Taking a note of such laws and trying to evaluate the impact they have on the daily lives of so many people in India, particularly women, does mean that I support veiling by force. However, if a Muslim woman considers the hijab as the part of her very identity, no one has any right to ask her not to wear it. Also, I strongly believe that if a Muslim woman does not prefer wearing a hijab, no force in this world should force her to do so. In my view, it’s all about choice. Here, I deviate towards the words of Rousseau, who once wrote in The Social Contract (Book I, Chapter VII), “whoever refuses to obey the general will shall be compelled to do so by the whole body. This means nothing less than [s]he will be forced to be free”. Though some may see hijab as oppression, it might be a symbol of identity for some Muslim women. I have many Muslim friends who don’t wear hijab because it’s their personal choice. I also have friends who wear hijab because they see it as an intrinsic practice of their religion, especially within the public domain and sphere of everyday life. It’s all about personal choice, and I stand in solidarity with both. Just because some consider the hijab oppressive, they cannot force a Muslim woman wearing a hijab to remove it as long as she cherishes it. Coming back to the saffron shawl, it’s a recent phenomenon that erupted in protest to Muslim students wearing hijab and is not intrinsic or essential to the practice of Hinduism.
Going down the track, the India @75 train now reaches Kerala. Recently, a schoolgirl petitioned before the Hon’ble High Court with a plea to allow her to wear hijab along with a long-sleeved SPC (Student Police Cadet) uniform. The state government denied the proposal claiming that the very objective of such a voluntary force is to ensure “gender justice, non-racial, and non-religious discrimination”. Also, the government urged that it will ensure the “dignity of the dress code” and the “secular survival” of the uniformed forces. Also, the government responded in the High Court that the force is a voluntary one, and since it’s not compulsory to join the force, the child cannot claim that she may be allowed to wear hijab in line with Article 15(1). Though the turban argument equally applies here, too, I’d like to focus on the Karnataka hijab row in this piece. If one applies the same argument in the Karnataka situation, then, one must say that the government is favouring “beti hatao” policy, in the words of former Chief Minister Kumaraswami. To make it clearer, Article 21 (A) of the constitution of India mandates compulsory education of all children up to the age of 14. Now, since education is compulsory, the students shall attend schools. And in the schools, if Muslim girls are not allowed to wear hijab, it contradicts the freedom granted under Article 15(1) and the government directive is, by the force of Article 13, null and void. As a result, one can say that the passing of new laws under the constitution appear to clearly contradict previous laws guaranteeing basic freedoms, liberties, and rights—leading to a compromise on the integrity of the constitution and the rationale that was developed to safeguard citizen rights.
Finally, the India @75 express stops here. The state, in the guise of protecting so-called equality, integrity, morality, and law and order, is just acting as a self-serving parens patriae, dictating individuals what to wear and how to wear what. While the hijab is an expression of Muslim women’s identity, and intrinsic to their religion, under no circumstances can the state dictate terms and conditions in the name of uniformity. A minister even claimed that when girls wear hijab, they reveal their religion, and other students begin to behave in a discriminatory fashion, so uniformity shall be entertained. Then, the first thing he should do is abolish caste surnames, as it also reveals the caste identity of an individual. Also, turbans reveal the identity of the Sikhs. Today a ban on the hijab will tomorrow be a ban on jeans, day-after-tomorrow, shorts, and one day, it will be the state who will decide what individuals should wear down to the most minimal accessory, especially with the way things are going. Sometimes, such things make me think—is it India @75 or India @1875? Needless to say, India @1875 seems to have been more progressive.
The views, opinions and perspectives presented and discussed in this piece are the author’s own.