Open Access Research Article
THE HIJAB CONTROVERSY: TWO SIDES OF A COIN
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Article Details
THE HIJAB CONTROVERSY: TWO SIDES OF A
COIN
AUTHORED BY - PRANJAL VASHISHT
& TANYA ROHILLA
"Religion in India must be made
as free and as easy to access as God's air." – Swami Vivekanand
Abstract
Women who follow the Islamic religion
wear the Hijab (a headscarf) as a sign of discretion and modesty. It is a
Muslim religious practice resulting from centuries of compulsory usage. Wearing
a Hijab demonstrates one's Muslim identity and profound faith in God. The prime
aim of this research paper is to analyze and explain the concept of the Hijab
and the claim of wearing a Hijab in the global Muslim community. It also
attempts to gain an understanding of the present controversies surrounding it
by using additional research of theoretical texts since, nowadays, excluding
Muslim women from educational institutions for wearing Hijabs is a famous
example of discrimination in violation of the Constitution's equality rights.
Women are becoming a frequent focus of religious restrictions all around the globe
because of how they dress, and compared to the general population, Muslim
women's engagement in schools has diminished more quickly between the ages of
15-20 due to the recent ban on wearing Hijabs. These restrictions frequently
take the form of individual or collective societal harassment, but they can
also take the shape of official government actions. Lastly, this research also
looks at the Modern perception of Hijabs and how Muslim women's fundamental
rights to practice their faith are violated.
Keywords: Muslim Women, Hijab, Hijab Ban,
Fundamental Rights, Constitution.
Introduction
Hijab is an Arabic word that means “covering.”
It is referred to by various names, the most common of which is a veil or a
headscarf. Hijab (primarily square or rectangular fabric) is worn by Muslim
women, enveloping the head and neck but leaving the face. Other than the Hijab,
the most prominent kinds of head scarf for Muslim women are the Burqa, and
Niqab, which were all heavily influenced by their religion. It refers to the
seclusion of women in some Islamic societies, which is customarily practiced in
maintaining standards of modesty. In the Qur'an, the concept of the Hijab has a
double meaning: not only something that has been protected but also something
that can hinder. Wearing Hijab is a personal choice of every woman. They choose
to wear Hijab or other coverings for a variety of reasons. Some also believe
that God has instructed women to wear it to fulfill his commandment for
modesty. Across India, about two-thirds of Muslim women wear them. Muslim
females are not the only ones who wear headscarves in public. Hindu, Sikh,
Christian, and Buddhist women also cover their heads when leaving the house.
These are all examples of patriarchal societies as women cover their heads out
of fear of gender. In many cases, wearing the Hijab is also used to challenge
Western Feminist narratives that portray women who wear the Hijab as being
oppressed or silenced.[1]
Fig: Share of Muslim women who cover
their heads outside their homes (%)
Background of the Case
The 'Hijab ban' controversy in India
began when local university authorities in Karnataka's Udupi district refused
to admit Muslim female students wearing Hijabs. The girls, outraged by the
university authorities' order to deny them admission simply because they wore
Hijabs, approached the Hon'ble High Court of Karnataka to seek redress for
alleged injuries under Articles 14[2],
19[3],
and 25[4] of
the Constitution. The girls' petition to the court argued that wearing the
Hijab was an essentially religious act and that "banning the Hijab"
violated their right to freedom of conscience and the right to practice and spread
their religion. In this context, Mr. Araga Jnanendra, who is the Home Minister
of Karnataka, conferred a statement that religion ought to be kept away from
educational institutions because students studying ought to appear a saffron
shawl neither nor wear a Hijab as well as he said that students shouldn't
appear in school to abide their religion custom because an educational
institution is a temple of knowledge and should come here to get an education.
This event sparked a nationwide
debate about the Hijab controversy, which raised several questions. Like
·
Is
wearing religious symbols in public a violation of Indian secularism?
·
Is
wearing a hijab or scarf obligatory in Islam?
·
Is
it possible to deny the right to education only on the premise of unification?
Are the Fundamental Rights of Muslim
Women Being Violated by the Hijab Ban?
The current Hijab controversy was
started by a ruling against wearing one issued by a pre-university institution
in Udupi, Karnataka. Similar requests for the Hijab's abolition were made in
several other districts' educational institutions. Muslim women's fundamental
rights may be at risk because of this trend. An essential component of the
Islamic religion is wearing the Hijab. This prohibition, thus, first and foremost,
violates Article 25(1)[5] of
the Constitution. This Article guarantees freedom to freely profess, practice,
and propagate their faith.
When it comes to literacy and
employment, women already face disadvantages. Additionally, the Covid-19
shutdown has left students with substantial learning gaps. In this situation,
choosing between education and identity is unjust and violates Article 21A's[6]
fundamental right to education.
Additionally, the ruling in Justice
K.S. Puttaswamy v. UOI[7]
expressly affirms that decisions made in public, like religion or attire, are
part of the fundamental right to privacy. Therefore, it violates both the
fundamental right to freedom of expression under Article 19(1)[8]
and the right to privacy under Article 21[9] to
forbid the expression of one's beliefs or manner of clothing. In addition, the
freedom to wear Sikh turbans and Christian crosses raises concerns about the
right to equality under Article 14[10].
The Test of Essentiality: Is Hijab a
Core Component of Islam?
The essentiality test, employed to
assess the sincerity and nature of religion and belief freedom, has significant
flaws. Our legal system cannot be considered a theological authority when
determining whether a practice is "integral" to a faith. Prof. Faizan
Mustafa, a well-known expert on religious liberty, has stated that the test
"restricts individual freedom and gives the courts excessive discretion in
questions of religion. It effectively raises the judiciary to the rank of the
clergy.”
Furthermore, the criteria need to be
more inclusive and consider how fundamental and fundamentally important
practice is to one's religion and conscience. Instead, using literature and
traditions, it analyses the significance of the practice to the religion.
Individual autonomy and liberty are not taken into consideration. This
paradigm, which puts the person at the center of the conversation, directly
opposes how rights should be seen. According to Charles Fried,
"Individuals come first. Anyone who asserts the opposite is using
metaphors. There are communities, nations, families, yet each is composed of
unique people."
Three factors must be taken into
consideration to determine whether wearing a Hijab is a mandatory practice:
a) What Does the Term “Essential Practice”
Mean?
A doctrine established by the Apex
Court in 1954 by the Shirur Mutt decision is the focus of most legal and
non-judicial conversations.[11]
According to the Supreme Court, "all religious ceremonies and practices
are protected under Article 25[12],
which guarantees freedom of religion and conscience."
The Supreme Court of India gave a
clear definition of it in the case of Commissioner of Police v. Acharya
Jagdishwaranand Avadhuta[13].
As per the Hon'ble Court, the essentiality test is "a test for deciding
whether a part or practice is necessary for the religion – to figure out
whether the concept of religion will change without that part or
practice."
Based on this idea, wearing a Hijab
should be considered an essential Islamic practice. Muslim women's culture has
always included the Hijab. The Holy Qur'an (Verses 24.31 and 33.59) also
discusses its significance in Islam.
b) What have the Court Decisions in the
Past been on the Hijab Controversy?
In Amnah Bint Basheer and Anr.
v. Central Board of Secondary Education (CBSE)[14],
the Kerala High Court accepted the Hijab as a fundamental Islamic custom. The verdict
was delivered in reaction to the CBSE's dress rule for the All-India
Pre-Medical Tests—the clothing code aimed to stop the pervasive practice of exam
cheating. However, because of these limitations, Muslim women were not
permitted to wear the Hijab in examination rooms. In this ruling, the Hon'ble
High Court acknowledged that for Muslim women, donning the Hijab is a
significant custom that should be upheld.
c) What is the Hijab’s Legal Status
According to International Law?
The" International Bill of Human
Rights" contains the "International Covenant on Civil and Political
Rights" (hereafter ICCPR). Regarding women's freedom to don the Hijab, two
incredibly significant ICCPR provisions are relevant.
"First off, Article 2(1) of the
ICCPR expressly calls state parties to respect and uphold the rights of all
people without regard to their race, religion, nationality, or political
affiliation." Secondly, Article 18(1) of the ICCPR also states that:
freedom, either individually or in community…in public or private, to
demonstrate his religion or belief in worship, practice, observance, and
teaching.”
The United States Supreme Court ruled
in Brown v. Board of Education[15]
that segregating Black and White children in public schools was unlawful. Nine
African-American students arrived at 'Little Rock Central High School' in
Arkansas, where they were welcomed by a furious White crowd and several troops
that Arkansas Governor Mike Beebe had sent to prevent them from accessing the
building.
Thus, it is self-evident under
international law that any action or practice, such as donning a Hijab, that restricts
these freedoms likewise breaches fundamental human rights.
Hijab Ban: An Indirect and Intersectional
Form of Discrimination
Noting that this is an instance of
intersectional discrimination—a term coined by Kimberly Crenshaw—is equally
important. The idea behind intersectional discrimination is that people are
made up of various intersect identities rather than having just one identity.
Muslim women are now marginalized since their identities as women and Muslims
overlap. Discrimination solely based on these protected factors is prohibited
under the ConstitutionConstitution. Recognizing the intersection of many
identities and attributes is the "essential content of the
anti-discrimination provision," the Supreme Court stated in Navtej
Singh Johar v. UOI[16]
in 2018.
Furthermore, it constitutes indirect
discrimination for the government to prohibit clothes that obstructs “public
order.” In the case of Lt. Col. Nitisha v. UOI[17],
the Supreme Court acknowledged the idea as a part of our
ConstitutionConstitution. Indirect discrimination occurs when a seemingly
neutral action disproportionately negatively impacts a protected class.[18]
Conclusion
Whether Muslim students should remove
their Hijabs at the school gates was decided by a split verdict of the Supreme
Court. A higher Bench would hear the matter again at this point. While the
majority views the Hijab controversy as a battle for religious liberty, a
deeper look reveals that it is a battle for education. It is common for Indians
to wear religious garb in public areas, such as the Hijab or saffron scarf. The
nation's integrity is threatened when diversity breeds division, and divisions
breed fault lines. Therefore, the Indian court must address these significant
constitutional conundrums before their polarizing effects extend to the
election-bound states. It's high time this controversy is taken seriously since
it is the root cause of communal riots in many country regions.
[1] Afroza Akter Rita, Assertion of
Wearing Hijab in the Community: an Analysis, ASRJETS 340, 340-341 (2017).
[2] INDIA CONST. art. 14.
[3] INDIA CONST. art. 19.
[4] INDIA CONST. art. 25.
[5] INDIA CONST. art. 25, cl. 1.
[6] INDIA CONST. art. 21.
[7] Justice K.S. Puttaswamy v UOI,
(2017) 10 S.C.C. 1.
[8] INDIA CONST. art. 19, cl. 1.
[9] INDIA CONST. art. 21.
[10] INDIA CONST. art. 14.
[11] The Commissioner, Hindu Religious
Endowments, Madras v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, (1954)
S.C.R. 1005.
[12] INDIA CONST. art. 25.
[13] Commissioner of Police v Acharya
Jagdishwaranand Avadhuta, A.I.R. 1984 S.C. 51 (India).
[14] Amnah Bint Basheer and Anr. v
Central Board of Secondary Education (CBSE), W.P. (C). No. 6813 of 2016 (B)
(India).
[15] Brown v Board of Education, 347
U.S. 483 (1954).
[16] Navtej Singh Johar v UOI, W.P.
(Crl.) No. 76 of 2016.
[17] Lt. Col. Nitisha v UOI, W.P. (C).
No. 1109 OF 2020 (India).
[18] Silvasahu, Indirect
Discrimination, LEGAL SERVICE INDIA, https://www.legalserviceindia.com/legal/article-6743-indirect-discrimination.html
Article Information
THE HIJAB CONTROVERSY: TWO SIDES OF A COIN
Authors: PRANJAL VASHISHT, TANYA ROHILLA
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/06/06
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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