Ashok Bhan is a senior advocate, Supreme Court of India, and a geo-political analyst. The views expressed are his own.
A full bench of the Karnataka high court is hearing a batch of petitions challenging the ban on hijab in educational institutions by the state government.
The matter is before a bench comprising Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi. Earlier, Monday, the senior advocate appearing for the petitioners told the court that a government can’t restrict fundamental rights in the garb of maintaining public order and sought permission for Muslim girls to wear hijab in schools and colleges.
The bench had last week issued an interim order that no religious symbols are to be allowed for students in schools and colleges until the final order of the court, thus barring the use of both hijab and saffron shawls in educational institutions.
The hijab row, started last month in a pre-university college in Udupi by six girl students, has snowballed into a major controversy in the country. The college development committee (CDC) has no statutory basis to frame rules on uniforms, their counsel argued. “The government’s decision in this regard shows a lack of wisdom,” he said, “and a legislator heading the committee will decide on fundamental rights. It is not legal to restrict the wearing of hijab.”
In India, wearing a hijab is an expression protected under Article 19(1)(a) of the Constitution which guarantees the right to freedom of speech and expression. Constitutionally, a right under Article 19(1)(a) can only be limited on the “reasonable restrictions” mentioned in Article 19(2).
The question is whether the uniform rules framed by the CDC is a reasonable restriction.
Sri Lanka has become the latest country to ban all forms of face veils in public places “for national security concerns” as part of legislation that took effect Apr 29, 2021. The wearing of burqas was temporarily banned in 2019 after the Easter Sunday suicide bomb attacks killed more than 260 people.
Contemporary India is entering uncharted territory, of which the hijab row is only the most outwardly inconsiderable recent instance. The controversy has gone viral globally as a violation of human rights. There is also an acknowledgement that it may have been deliberately orchestrated to influence the elections in Uttar Pradesh and other poll-bound states.
The predictable outcome of the controversy is that the authorities in India, though not directly involved in a local school dispute, will be forced to intervene to make concessions on the issue and reach a compromise. But it should be noted that bowing on the issue will constitute a setback with larger consequences because it will confirm the political muscle of extreme groups using it to demonstrate their ability to hold the system to ransom. This is already the case with loudspeakers broadcasting the azan and namaz blocking thoroughfares, says a section of pundits.
The hijab controversy seems to have become a major political issue all over the country with activists taking rigid positions, helping divisive forces on both sides to consolidate their vote bases.
The hijab has been an age-old practice in many parts of the country where women belonging to all faiths cover their heads because of prevalent social customs. Having studied in Kashmir and practicing law in Delhi and other state high courts, I know it is a practice that girl students belonging to a particular religion arrive at the educational institution clad in burqas/hijab since they would not be permitted to travel otherwise by their orthodox parents, but once inside the gates, they take off their burqas/headgear in a room meant for this purpose and enter the premises in salwar kameez or any other attire. They attend all their classes and spend free time on the premises. The burqa or hijab was never an issue that was objected to by anyone and it is an acceptable norm.
What seems to be happening is that the controversy has been kicked up because the matter has assumed religious overtones. There is no bar if girl students arrive wearing a hijab, but once inside an educational institution, they must abide by the prescribed uniform code. Where no such dress restrictions exist, there should be no problem with anyone wearing any sort of headgear.
Parallels are being drawn regarding the turbans worn by Sikh boys in schools. In virtually every school, Sikhs are allowed to wear a turban matching the colour of the uniform and no controversy has arisen. In rural India, in many parts women belonging to every faith not only cover their heads but their faces also. This is a social custom even if it is gender-specific.
Of course, every person has the right to choose his or her attire, but in an educational institution, one has to follow the rules if they exist. Wearing the hijab is a compulsion for many Muslim girls if they have to attend college. Otherwise, they would be deprived of education since their families may not permit them to step out of their homes.
However, the wearing of a veil and hijab is not mandatory in Islam. While orthodox and patriarchal clerics believe they are mandatory, any number of modern-day Islamic scholars, men and women, maintain that hijab has nothing to do with the teachings of the Quran and the Prophet. The veil, in other words, is not mandatory in Islam.
People of all religions in India have faith in the wisdom and intellectual integrity of the judiciary and I, as a law practitioner, believe it will live up to the trust and confidence of the citizenry and uphold the dignity of women and rule of law and promote the societal equanimity that is fundamental to constitutionalism.