The best solution to the ongoing struggle for rights by Muslim women in Udupi would be that the judiciary provide female Muslim students with a full-fledged and unfettered right to wear hijab in public institutions. This is in consonance with the protection granted by Articles 25 and 26 of the Constitution, writes MOHAMMAD ABID SIDDIQUI.
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THE Chief Justice of India, N.V. Ramana, on Friday morning, refused to grant an urgent listing for hearing a Special Leave Petition filed against the Karnataka High Court's interim order regarding the hijab ban in Karnataka colleges. Earlier on Thursday, the three-judge bench of the Karnataka High Court denied interim relief to a group of Muslim female students against a ban on wearing hijab (headscarf) in classrooms.
The court did not take into account the number of days these students had been denied their rightful education. It neglected to delve into the derision these women had been subjected to while sitting and protesting outside the gate of their college. The court fumbled to acknowledge the pain of 21-year-old Muskan Khan, who was heckled while ambling down the parking premises towards her classroom wearing a black full-body hijab which adorned her body for so long, by a burgeoning number of saffronised youth prowling out to rob Hijabi women of the modicum of rights the world has given them.
The dream of achieving quality education has never been bereft of struggle for Muslim women. Though there has been significant improvement in the community's mind set towards women's education, with ample space for education allowed in practically every Muslim household, some members of the community still believe it is not a necessary aspect of a woman's life. This is reflected in recent data from the National Statistical Office, which revealed the startling position that Muslim women have the lowest literacy rate among all religious groups across the country, at 69 per cent, as well as a higher percentage of women who have never enrolled (22 per cent) than any other backward group in the country, including the scheduled castes and scheduled tribes.
“Muslim women have the lowest literacy rate among all religious groups across the country, at 69 per cent, as well as a higher percentage of women who have never enrolled (22 per cent) than any other backward group in the country, including the scheduled castes and scheduled tribes.
It would not be improbity to presume that the practice of Hijab played a role in the educational backwardness of Muslim women. But times have changed, and the country's mainstream Ahle-Sunnah Ulama (Muslim scholars and doctors of jurisprudence) are supporting women's education if taught in an appropriate and conducive environment. It is the obligation of the State to provide an environment that is safe as well as conducive for women to ameliorate their educational standards. And one of the primary solutions would be that the unrestricted and unfettered legitimacy of the hijab should be provided in public institutions.
The hijab should not be looked upon as a bare piece of cloth. It is an essential part of a Muslim woman's religious observance and an outward expression of her right to freedom of religion, which the bulkiest Constitution in the world accords protection. Articles 25 and 26 of the Constitution provide for religious freedom, and the right to freely practice, profess, and promote one's faith. Religion has been construed by the Supreme Court of India in the case of A.S. Narayana Deekshitulu vs. State of Andhra Pradesh (1996) as a spiritual force that regulates an individual's conduct in such a way as to restrict the rights, liberty, interests, and desires of that individual. Every religion must have certain core principles, and those principles are safeguarded by the Constitution.
The protection guaranteed under Articles 25 and 26 is not restricted to questions of doctrine. It encompasses all acts, even those done in furtherance of a religious code that deems a particular ritual, a custom, or an observance as an integral part of the religion. But the rights conferred under these provisions are not absolute or unrestricted rights; they are subject to public morals, tranquility, and health.
A religious practice by itself is not decisive. A practice emanating in pursuance of an unsubstantiated belief and not forming an essential part of the faith is subject to governmental regulation in the interest of society. This is what the court of law looks at while adjudging matters under Articles 25 and 26 of the Constitution. The Constitution envisages striking a balance between the rigidity of the right to religious belief and faith, and the essential commandments enshrined in its text and freedom of conscience as a right. This sensible balance is what protesting female students in Karnataka are demanding.
The true test of assessing the essentiality of a religious practice may be ascertained primarily from the doctrines of religion itself, according to the tenets, historical background, and change in the evolutionary process, among other things. The holy Quran is the primary source of Islamic doctrine and it expressly commands believing women in chapter 24, verse 31, "not to show off their adornment except that which is apparent (like both eyes and parts of the face, or palms of hands), and to draw their veils all over body parts like necks, bosoms, etc., and not to reveal their adornment except to their husbands and close relatives." Similar commandments have been made in the 59th verse of the 31st chapter of the Quran, which commands women to "draw their cloaks (veils) over their bodies (to screen themselves") when they get out of their homes.
“There is no doubt that the hijab is an essential aspect of the Islamic faith that should be protected by the Constitution.
The Hadith and traditions of the Prophet of Islam, which carry the most weight after the Quran, also make mention of many narrations in which the Prophet instructed women to practice hijab. Furthermore, the fact that generations of Muslim women have worn the hijab since Islam's inception establishes its importance in the faith. As a result, there is no doubt that the hijab is an essential aspect of the Islamic faith that should be protected by the Constitution.
It is worth noting that the scenario is absolutely out of the question whether a woman is compelled to wear a hijab or a woman who has never worn a hijab wants it as a right. The court of law is not concerned if a woman acts contrary to her religion, marries a man of a different religion, or starts living as a secessionist. The court is not at all concerned with any of these facts. A woman is free to do whatever she desires, but if she decides to revert back to her faith and assert her religious rights, the court is bound to enforce such rights for her.
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The Udupi hijab case is more than just a matter of rights; it is a sensitive matter involving women from minorities, and the court must proceed with caution and utmost leniency in order to realise the social progress, well-being, and safeguards provided to religious minorities as envisioned in Articles 25 and 26 of the Constitution. The court must look for liberal interpretations exhibited by the courts of other democracies in this regard.
To mention a few, the Swiss Supreme Court allowed a Muslim father to remove his daughter from mandatory swimming classes of schools on ground of "strong faith". The High Court of England and Wales in the United Kingdom permitted a Sikh girl to wear a "kara" (bangle) to school because it was an expression of her Sikh faith and any rejection of her freedom of religion would be blatant discrimination. The Constitutional Court of South Africa duly recognised the right of students to wear their religious attire in the landmark case of MEC for Education: KwaZulu-Natal & Ors vs. Pillay (2007). In the United States, a school can disallow a religious expression only if it materially and substantially disrupts the school's discipline. The Canadian courts have taken a similar, but slightly more liberal approach, demonstrating ample religious tolerance.
The fact that courts in these democracies have shown a broad-minded outlook in deciding cases involving religious freedom must be persuasive to courts in India. Before giving any definitive judgements on the Udupi hijab matter, Indian courts must examine the pattern of benignancy displayed by various foreign courts. It is critical that a decision made in the authority of the law be reformative rather than disastrously hellish for a community.
“Before giving any definitive judgements on the Udupi hijab matter, Indian courts must examine the pattern of benignancy displayed by various foreign courts. It is critical that a decision made in the authority of the law be reformative rather than disastrously hellish for a community.
Finally, it is concluded that the best solution to the ongoing struggle for rights would be that the judiciary should provide female Muslim students with a full-fledged and unfettered right to wear hijab in public institutions. This would be the most resplendent largesse in the form of rights that could be bestowed upon them concerning their backwardness in education. The fact that female Muslim students in Udupi are being denied their constitutionally guaranteed right to education and are being forced to give up their freedom of conscience and right to practise their religion should motivate the stimulation. The courts should also prevent forced secularisation in education, as extreme secularism, such as that implemented in France or Turkey, may raise the risk of secularism becoming a dogma and oppressing individuals.
It would be wise to recall in the end the words of the United States' Supreme Court, which said, while deciding the famous case Tinker vs. Des Moines Independent School District (1969), that students "do not shed their Constitutional right to freedom of speech and expression at the school gate." The fight is just for that one right, one bloody right …
(Mohammad Abid Siddiqui is a law student at the Faculty of Law, Jamia Millia Islamia, New Delhi. The views expressed are personal.)