The Hijab Row: What guides a polarising verdict?
“In history, they have used religion to control people, and now the government is trying to control my relationship with my religion.” [1] — Aydi, 21
Every Indian girl (and human being) is in constant negotiation on what is essential to her religious practice, within her own household and her community. These negotiations may revolve around her education, economic freedom, and her personal interests, based on abstract and ever-evolving concepts of culture and religion.
The judgement following the hijab row, is based on the “Essential Religious Practice” doctrine. [2] Decisions based on this argument have been historically problematic, where judges occupying the bench at a given time pass verdict on whether a practice is “essential to a religion” in order for it to be allowed. [4]
Do you feel that the “essentiality test” should continue to guide court judgements?
Growing up, Aydi, believed she needed to live within the obligations her culture seemed to impose, despite her ambitions. “This abstract piece of wood represents a skateboard and the waves of the ocean. I wanted to learn swimming, skateboarding and surfing. So I designed this long before I even joined skateboarding!”
“Before I met people outside, I thought there was a certain way I had to live. But now I see, there are more things that can be done with my life.” [1]
The Constitution allows for Aydi to do this, without needing to choose between her faith and the pursuit of life. Equally, it allows a person holding office to wear a turban or religious beads to work, without assuming hindrance to their performance.
Background: The Hijab Row
In January, a Karnataka college, in coastal Udupi, in/famously (depending on which side of the conversation you are on), banned the entry of girls wearing a hijab. This spurred 5 more colleges to enforce a ban on hijabs. What ensued were protests by women in hijabs, taking to the streets to assert their right to profess their religion; on the other end of the spectrum, men (potentially non-muslim) were seen protesting the hijab in saffron shawls, and by sticking notes on the backs of women in burkhas.
Within the confines of the internet, the conversation broadened. Some furiously tweeted for people’s fundamental right to practise their religion; some opined on the regressive, patriarchal underpinnings of hijabs; some others commented on the need for a common uniform in schools, which justified the ban.
By March, the girls were contesting the ban in the Karnataka High Court, which led to the verdict on 15th March upholding the ban. On the 24th of March, the case was moved to the Chief Justice of India (CJI), as the ban on hijabs has been impacting girls’ access to school during exams.
“Exams have nothing to do with the issue”, CJI Ramana said.
“…the exams are from 28th. They are being restrained from entering the schools. One year will go”, Advocate Kamat pressed.
“Next item”, said the CJI. [3]
The petitioners and Solicitor General Kamat, had based their argument in the High Court on Article 25 of the Indian constitution: All persons are equally entitled to freedom of conscience and the right to freely profess, practise and propagate religion. [2]
“It has to be shown that wearing the hijab is essential to Islam,” argued Advocate General Navadgi, in order for the hijab to be protected under Article 25. “It has to be compulsive so that if one disobeys, s/he ceases to be part of that religion.” [2]
“We are not Turkey, which says no religious symbols can be displayed in public… Ours is positive secularism. We recognise all religions,” argued Advocate Kamat. “Why is Government picking on hijab alone and making this hostile discrimination? A bindi wearing girl is not sent out, a bangle wearing girl is not. A Christian wearing a cross is not touched.” [2]
Despite claiming that the material presented was “extremely meagre”, the High Court went on to rule in favour of the ban in the school, declaring, “It is not that if the practice of wearing hijab is not adhered to, those not wearing hijab become the sinners, [and that] Islam loses its glory, and it ceases to be a religion.” [2]
“You wear a hijab to show your love for God, and keep your sexuality private. Hijab is adopted to cover yourself so people look at YOU, past your breasts and figure. But then I wondered, why can’t they look at you this way, even if you are not wearing a hijab?
I’d just begun taking my hijab off, but at the same time the government is also asking women to take the hijab off. ”
- Aydi [1]
Opinion: On the basis of equality over essentiality
India’s religious identity has never been homogenous, with individuals constantly negotiating the degrees to which they’d like to follow practices within their religious sub-sect. Whether it’s to wear a hijab, eat meat on a Friday, or wear a toe ring.
Through this principle, it would seem that the caste system described in the vedas could be considered essential to Hinduism, if those occupying a bench at a given point in time believe so.
The essentiality test was first crystallised when the court examined Hindu texts to rule that Dalits (untouchables) could be granted temple-entry since untouchability was not an “essential part of the Hindu religion.” Basing the argument on “essentiality” instead of on inclusion and equality has had severe implications on the way other verdicts have unfolded — inconsistent, polarising. [4]
In 2016, the high court in Kerala found the hijab essential to Islam, after studying the Koran. But, when a Muslim police officer in Kerala challenged a regulation that prohibited him from growing a beard, his petition was rejected based on the fact that some Muslim dignitaries did not have beards. [4]
In 2018, the court used the essentiality test to allow Hindu women of all ages to enter the Sabarimala temple, which had previously restricted women of certain ages. Again, basing the argument on “essentiality” as opposed to equality or inclusion. [4]
In the matter of the land on which Ram Janma Bhoomi-Babri Masjid stood, the government technically did have the power to acquire land for public purposes under The Land Acquisition Act, 1894. However the court chose to rule in favour of the State, not on the principle of eminent domain, but by questioning if praying in the mosque was an essential practice of Islam. [4]
Secularism (n): the principle of separation of the state from religious institutions.
The High Court ruled in favour of the Hijab Ban, on the basis of essentiality, and on the basis of secularity being an objective of the Karnataka Education Act. This would indicate that secularity is best exercised through the erasure of all religious displays (inessential to religious practice).
Is it possible to erase religious displays in schools when even our names tell a story of religion and cultural history?
Secularism, by definition, refers to the separation of state from religious institutions. Should it be within the purview of the courts to make decisions on the basis of essentiality?
A recent study by the Pew Centre revealed that Indians do value religious tolerance while living religiously segregated lives. However, it also showed that religious identity, national identity, and the ability to speak Hindi were closely intertwined for a majority of Hindus in specific. 64% of Hindus interviewed held the belief that it is ‘very important’ to be Hindu to be truly Indian, and 59% of Hindus interviewed linked Indian identity with the ability to speak Hindi. [6]
The current essentiality test seems to fly in the face of secularism. It leaves room for biases held by those on the bench to further polarise a State that may well be on the brink of reverting to pre-independence religious tensions. [4]
Learning: Guiding Principles vs. Resulting Outcomes
The “hijab ban” has had the country polarised. As citizens, we need to study the principle guiding a court result, instead of the result and its outcomes alone.
Arguments in favour of the court’s decision uphold a school’s right to impose a uniform, but are entwined with cynicism that political agenda seems to be “blowing the issue out of proportion.” [5] Arguments against the court’s decision are focussed on a person’s choice to profess one’s religion, yet are heavily laced with a similar cynicism on a political agenda behind targeting Islamic displays of religion in specific.
Either way you look at it, the hijab row is political in the current Indian climate, and needs to be handled with much more care by the Judiciary. The essentiality test has, and continues to result in controversial verdicts outside of its purview and competence. Dinner table discussions on the row are often focussed on outcomes as opposed to the guiding principle of “essentiality” which could perhaps allow for more productive discussions and much-needed common ground.
In matters of the law, such principles are everything. They guide forthcoming arguments and verdicts, and must be critiqued.
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Did you know? In the landmark Roe v Wade case which legalised abortions in the United States, Ruth Bader Ginsburg criticised the ruling, despite her being pro-choice. The argument for abortion was based on the violation of a woman’s privacy. Ginsburg said, “Roe isn’t really about the woman’s choice, is it? It’s about the doctor’s freedom to practice…it wasn’t woman-centred, it was physician-centred.” [7] Ginsburg believed it would have been better to approach it under the equal protection clause, making it less vulnerable to attacks in the years after it was decided. [8]
Have you ever had to negotiate your independence or choices based on cultural or religious expectations?
Even as a woman born into a forward caste Hindu family, I know I’d be lying if I say that I haven’t.
Sources:
- Primary research with Aydi, 2022 (name changed to protect privacy)
- LiveLaw.in: How Preconceived Notions May Have Trumped Judicial Reasoning, 2022
- LiveLaw.in: CJI Refuses To Give Urgent Listing For Pleas Against Hijab Ban In Classrooms; Says ‘Exams Have Nothing To Do With This Issue’, 2022
- Faizan Mustafa: Freedom of Religion in India: Current Issues and Supreme Court Acting as Clergy, 2017
- The Print: Why freedom to choose to wear hijab is not absolute, have to draw the line somewhere: Arvind Datar, 2022
- Pew Research Center: Tolerance and Segregation, 2021
- Law UChicago.Edu: Justice Ruth Bader Ginsburg Offers Critique of Roe v. Wade During Law School Visit, 2013
- Britannica: Roe v. Wade
