Karnataka government’s hijab ban on ground of ‘public order’ is not just constitutionally wrong but also morally unjustifiable

Women being humiliated in public by a mob, forcing her to remove their head scarf as a pre-condition to getting an education is not just constitutionally objectionable, but should distress any reasonable person with common decency, writes NANDITA RAO.

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IN disbelief, the nation watched visuals, on television, of women students and teachers being disrobed at school and college gates in Karnataka, removing their hijabs and burqas in public view. In a country where, even for frisking by security forces in an airport, a special enclosure is built to ensure the dignity and privacy of women, this seemed too outrageous an indignity for them to endure, simply to access education and employment. One was immediately reminded of the plight of Draupadi in the Mahabharata, where she had been let down by those who were legally and morally charged with her protection. Dragged into the sabha, after her husbands lost her in a game of dice, she calls to the elders sitting in the sabha and urges them to answer, whether this was dharma? Her question is responded with silence. It is the silence of impotence that we hear all around us today.
Much like the vigilantes that were lynching people across the country on suspicions of cow slaughter, the news reported saffron-clad vigilantes, stalking women in Karnataka who were wearing head scarfs to schools and colleges. Such events have become so common place in the election season that we have almost normalised this seasonal vulgarity, in the hope that it will have less effect if we ignore it. However, in an unprecedented and arbitrary action, the Government of Karnataka chose to effectively ban the wearing of hijab, rather than taking legal action against this self-styled saffron moral police on the pretext of maintaining public order.
Also read: Karnataka hijab row: Behind the urge to discipline

Incorrect framing

The media joined in the circus by defining the debate around the bullying of Muslim Women by State and non-State actors as, instead, a debate on the issue of women's empowerment, despite the fact that the state government clearly and unequivocally maintained that it was an issue of public order. Ironically, the saffron mobs out on the streets, purportedly provoked by the sight of Muslim students wearing a hijab, appeared very similar to the mobs that a few years ago attacked women going to pubs and wearing short dresses, in the name of violating "Indian Culture"!

If at all this was an issue of women's empowerment or wearing of uniforms in college, it should not have been restricted to the banning of hijabs by women of the minority community, but ought to have extended to all symbols of identity worn by students of all communities, be it the bindis, sindhur and the mangalsutra. The decision of the state government could have been tested against such an objective only if it had been made with the objective of empowerment, but since the stated objective is public order, the Courts must test whether a government can curtail the constitutional freedoms of choice of attire by women and minorities, to maintain public order, or is it obliged to deploy the law and order machinery to restrain vigilantes.
Also read: Heckler's veto: An explainer

Respect other's choice

The preamble of the Constitution of India, guarantees us (the people of India) big or small, minority or majority, women or man, liberty of thought, expression, belief and worship, and fraternity assuring the dignity of the individual and the unity and integrity of the nation. What we wear is as much part of our identity as our name or what we eat or the language we speak. It defines our choices as individuals and as communities.
The Supreme Court in Tehseen Poonawalla vs. Union of India (2018) defined fraternity to mean, unity in diversity and held that "the unique feature of "unity in Diversity" inculcates in citizens a culture of respecting opinions and choices of others which imbibes feelings of acceptance of plurality and elevates idea of tolerance by promoting social cohesion and infusing a sense of fraternity and comity." The Court has in the same judgment also held that, "vigilantism … for whatever purpose or borne out of whatever cause … undermin[es] the legal … institutions of the State … These extrajudicial attempts under the guise of protection of the law have to be nipped in the bud; lest it would lead to rise of anarchy and lawlessness which would plague and corrode the nation like an epidemic. … The State has the primary responsibility to foster a secular, pluralistic and multi-culturalistic social order so as to allow free play of ideas and beliefs and co-existence of mutually contradictory perspectives."
The Supreme Court went on to recommend various preventive remedial and punitive measures to control vigilante mobs to be followed by the various governments.
Also read: The Karnataka hijab ban makes central the very thing that is constitutionally shunned

Therefore, the endeavour of a Constitutional government must be to infuse a feeling of social cohesion and acceptance of plurality by encouraging citizens to respect the choices of others by taking the various preventive and punitive measures recommended by the Supreme Court. Instead, it appears that the state of Karnataka has admitted with impunity its inability to govern constitutionally, and is defending before court an act of majoritarian appeasement on the ground that wearing a hijab is not an integral part of the faith of Muslims. It may or may not be, but disrobing a woman of her head scarf, to silence or quell a mob, is certainly contrary to the mandate of our Constitution to promote fraternity and maintain rule of law.

One doesn't need to be a Constitutional expert to come to this conclusion; I believe that any ordinary person with common decency would object to women being humiliated in public by a mob forcing her to remove their head scarf as a pre-condition to getting an education. It is only a deeply disturbed society that can be threatened by a young girl engaging with patriarchy from a space of safety, thereby attempting to empower herself with opportunities that would lead to choices. Let's hope we would not need the intervention of the divine to restore common decency in our polity and society.
(Nandita Rao practices in the High Court of Delhi and the Supreme Court of India. The views expressed are personal.)