On Tuesday, while verses from the Quran were being read out in the Karnataka High Court, visuals of a burqa-clad Muskan Khan being menacingly heckled by male student protesters wearing saffron scarf and chanting ‘Jai Shree Ram’, at a college, were replaying on computers, phones and TV screens across the country.
Khan is seen parking her scooty, unflinchingly walking in the face of the throng of men, raising her fist in the air to scream ‘Allah-Hu-Akbar’. Those glued to their screens took away different learnings from this clipping.
In Muskan, some saw a young woman asserting her independence–joining the millions who don’t want boys to have all the fun. Some others interpreted the incident as a stand-off between a young woman on one side and several men on the other. There were also those who observed how young minds in India are being polarised. Some just couldn’t look past her burqa.
Like this viral video, the hijab row in Karnataka too is multi-layered, with arguments of religion, law and feminism meeting at an intersection and blending together into a political soup.
The lords are debating now, with the Karnataka High Court having heard the matter thrice so far — twice by a single judge and once by a three-judge bench that has now barred students from wearing “saffron shawls (bhagwa), scarfs, hijab, religious flags or the like within the classroom” until further orders.
In the meantime, everybody–from Priyanka Gandhi to the Taliban–has jumped into the debate, bringing this piece of clothing under wide scrutiny. That is why hijab is ThePrint’s Newsmaker of the Week.
Also read: Bommai govt should have seen the hijab storm coming. Quick damage control needed now
Choice, coercion and everything in between
Practising Muslims often take recourse to verses of the Quran to insist that it mandates covering women. For instance, take Chapter 24, verse 31, which says, “And say to the believing women that they should lower their gaze…; that they should not display their beauty and ornaments except what (must ordinarily) appear thereof; that they should draw their khimār … and not display their beauty except to their husband, their fathers, their husband’s fathers, their sons, their husbands’ sons, their brothers or their brothers’ sons, or their sisters’ sons, or their women….”
This was, in fact, one of the verses that senior advocate Devadatt Kamat, who is representing some of the young women student petitioners in the Karnataka High Court, also referred to during the hearing.
There are others who claim that the Quran does not require women to wear a hijab and that this is a result of incorrect interpretations of the holy book by various clerics.
At the same time, interviews with Muslim women show that their reasons for donning the hijab lie over a spectrum of choice and coercion. Every girl’s hijab has a different story–ranging from faith, identity, expression, community symbols, to outright oppression and compulsion.
However, this “choice” to wear a hijab has also often been attributed to patriarchal conditioning and so, is rejected as being a choice at all. And the fact that the practice of wearing hijab has multiple interpretations within the community itself makes any debate around it more complicated.
Also read: The real issue in Karnataka hijab row is how secularism is defined wrongly – Nehru to Modi
Lifting the veil on Article 25 argument
A section of public intellectuals see Article 25 of the Constitution as a panacea for the ongoing row. While on the surface, their argument looks plausible, a closer look reveals that it might do more harm than good, because of its past interpretations.
Article 25 guarantees the “freedom of conscience and the right to freely profess, practise and propagate religion”. However, this right isn’t absolute and is subject to public order, morality, health and other fundamental rights as well. While Article 25 itself does not read any other condition into the protection of this right, courts, over the years, have ruled that this right would protect only “essential religious practices” and not all religious practices.
But who gets to decide what is essential for a religion and what isn’t? It is the judges who do so and that’s where a large part of the criticism against this test emerges from. Several critics have often pointed out that this judicial practice forces judges into becoming “ecclesiastical authorities (often for religions that are not even their own)”.
In fact, Justice D.Y. Chandrachud, in the Sabarimala case, had lamented that “compulsions nonetheless have led the court to don a theological mantle”.
And while donning such a mantle, the test also necessarily denies individual agency. It rests on erasing a person’s autonomy and the choice that they may have in the matter. To say that they have to follow a religious practice solely because it is “essential” to a religion or a religious authority, makes it compulsory. As scholars have pointed out, a declaration on these lines from the court would mean a legal pronouncement that Muslim women do not have any choice in the matter, that they are helpless when it comes to hijab, and that they are mandated by their religion for donning it.
And so, the question whether hijab is “essential” to Islam itself needs a relook, because the answers that may come out of a judicial scrutiny like the one by Karnataka High Court leave Muslim women between the devil and the deep blue sea.
Also read: The right answer to the wrong hijab question is still a wrong answer
The threat of further marginalisation
Within the court arguments too, there is a slight rejection of the essential religious practice test.
While Kamat’s arguments have focussed on why hijab is an essential religious practice in Islam, Sanjay Hegde, who represents some of the Uddupi students not allowed entry in school, has been trying to urge the court– and rightly so–to focus on the question of whether the State is empowered to prescribe a uniform, and if so, then has it been properly prescribed. Hegde, in a recent column for The Hindu, has also explained why the essential religious practice test is “problematic”.
However, it is unlikely that the Karnataka High Court could detract from this test, because it has been reiterated several times over by several Courts. For example, while the Bombay High Court has held that the capture and worshipping of a live cobra during Nag Panchami was not essential to the residents of a village, the Supreme Court in 2017 held that triple talaq was not an essential practice under Islam and therefore, cannot be Constitutionally protected under Article 25.
Besides, we’ve also seen the effects of trying to take a top-down approach when it comes to religious beliefs, as was laid bare in Sabarimala and the triple talaq cases. When a call for reform comes from outside the community, it runs the risk of further ghettoisation and marginalisation of its people – a danger that Muslims in India have increasingly been facing over the past few years. So while a call for reform is the need of the hour, who makes that call is just as important.
Also read: Pakistan is standing up for Karnataka girls. Just not Ahmadiyas, Hindus, Christians
The questions that we should be asking
At the end of the day, these are young women who want to study.
Should we allow young Muslim women to become pawns of what essentially appears to be a political power play? Should we let religious clothing come in the way of the right to education of these women? But at the same time, will declaring the donning of hijab on campuses an “essential religious practice” be self-defeating? Can the State dictate a uniform for colleges? Can such a uniform ban “religious garments” and is this against the “freedom of conscience”, also guaranteed under the Constitution? Should this debate revolve around the right of an individual to dress as they wish, or should the fact that the motivation behind the clothing is religious impact this right? Is such a choice protected under the right to free speech, privacy and decisional autonomy? Can an appeal for reform within Islam come from outside the religion? How effective will such an appeal be on ground?
The hijab debate is not new and has always remained extremely complex, and not just in India. But the only way Muslim women can come out of this unscathed is by ensuring that their fundamental right to access education isn’t sacrificed at the alter of religion or politics, or a deadly mix of both.
Views are personal.
(Edited by Anurag Chaubey)
Source: The Print
