Recently a controversy over the Muslim tradition of wearing a hijab has been making waves in our neighbouring country India. Protests for and against the hijab were staged in various regions of Karnataka as the issue grew more heated. The issue has intensified when six Muslim girls wearing hijab protested outside the Women's Government PU College in Udupi, Karnataka on December 31 as the institute refused them access into the classroom.
Street protests and social media indignation are erupting around the country in response to the incident. As a result, the state of Karnataka state took the decision of shutting down high schools and colleges for three days since protests by students over the hijab had escalated into violence. The ban on hijab, according to Muslim girls, breaches their fundamental right to freedom of religion, as granted by the Indian constitution. Furthermore, the standoff has heightened fear and outrage among minority Muslims, who claim that the country's constitution grants them the right to wear according to their own choice.
These protests reached a new dimension when a certain video went viral: In the clip, a 19-year-old Muslim girl wearing a hijab and a face mask along with a long black gown was being heckled by throngs of young men chanting slogans, and also showed heated arguments between students wearing hijabs and saffron shawls. In an intensifying dispute over hijabs, or headscarves, Muskaan Khan has inadvertently become the face of resistance for young Indian Muslim women.
Millions of Muslim women in India, like Muskan Khan, wear the hijab and burka every day, but the choice has become divisive in recent times.
Muslim women wear the hijab as a sign of modesty and religious commitment. It symbolizes a woman's obedience to her Creator and her faith. The wearing of a headscarf (hijab) is a religious requirement mandated in the Holy Qur’an, and the state is therefore powerless to override Qur’anic injunctions. However, it is currently illegal in many countries, and many people regard the Hijab as a kind of fanaticism or “political Islamism” opposed to the very idea of a secular government.
The girls, who were previously forbidden by the Udupi PU College, have petitioned the Karnataka High Court for the right to wear a hijab in the classroom. The Karnataka High Court has referred the issue of the hijab to a larger panel. In the ruling, the single-judge bench stated that the matter of interim relief would be examined by the larger bench. But the government opposed interim relief, claiming that it cannot enable students to wear hijab on a temporary basis.
According to the state government, the prohibition on wearing the hijab in public schools does not violate the constitutional provision of religious freedom. The Indian constitution, under Article 26, safeguards religious freedom unless it jeopardizes morality, health, or public order. In a February order, the BJP-controlled state administration expressed that the students' hijabs did just that. The Karnataka government issued an order on February 5 to exercise its powers under Section 133(2) of the Karnataka Education Act, 1983, which allows the state to provide guidelines for government educational institutions to obey.
The state issued an order making uniforms mandatory for educational institutions in 2013 under this clause. The most recent directive, referring to the 2013 order, stipulates that wearing a headscarf or hijab is not an essential religious practice for Muslims that can be protected under their constitution.
It was previously seen that the court had failed to protect constitutional rights. The Kerala High Court allowed two Muslim girls to take the All India Pre-Medical Test (AIPMT) with full-sleeved clothing and headscarves in July 2015, but only on the proviso that invigilators can frisk them if they are suspected of anything. It has also been perceived in Fatima Tasnim vs State of Kerala that: “Petitioners cannot seek imposition of their individual right as against the larger right of the institution and collective rights of an institution would be given primacy over individual rights of the petitioner.”
The constitution of India guarantees freedom of religion in Articles 25-28. In the renowned case of Bal Patil Anr vs Union of India, the Supreme Court ruled that the state has no religion and the state has to treat all religions and religious people equally and with equal respect without in any manner interfering with their Individual rights of religion, faith and worship.
Students discreetly wearing a hijab and attending class cannot be deemed as “disrupting public order” as it is simply a declaration of their beliefs. According to political analysts, the hijab conflict is an attempt to polarize southern India. Wearing a hijab protects one's privacy and the government edict in this regard violates the boundaries of privacy.
What was normal just a short while ago is now controversial with a massive wave of hijab protests brewing in Karnataka. Apparently, the hijab controversy is much more complicated than it seems. It's an unanswered judicial question that is being exploited to make political points. But whether wearing hijab is a legal question that needs to be answered in court or if this yet another political distraction is still quite an open-ended question.
But one thing is clear: Banning Muslim women from wearing hijab is undoubtedly a violation of their constitutional as well as religious rights, and a sure sign of India’s continued marginalization of Muslim women.
Anika Tahsin Mihi and Saifullah Siddiquei Ador are students of law.
