This is the conclusion of a four-part series on the interaction between Indian Muslim women and the law in India in the recent past. Collectively, the series seeks to examine issues of criminal law, employment, work practices, and educational opportunities, and asks whether Muslim women have equal status before the law.
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IN the final part of this series, we discuss the ongoing hijab ban hearings at the Supreme Court of India. rooms I and II addresses discrimination in the criminal justice system, and Part III dealt with the bias inherent in employment practices against Muslim women.
In this part, I address the equality concerns regarding the hijab ban.
Actions to date
On February 5, the Karnataka government issued a order (“GO”) which did not allow students to wear the hijab, or customary Islamic headscarf, in educational institutions. This GO was disputed at the High Court of Karnataka.
The case of schoolgirls and college girls wearing the hijab needs to be looked at from the perspective of religion and gender.
A single judge of the High Court referred case to the Chief Justice of the High Court for the case to be heard by a larger panel. A bench of three judges was therefore established, which heard the case. On February 10, the High Court issued a interim order through which he “restrict[ed] all students, regardless of religion or faith, to wear saffron shawls (Bhagwa), scarves, hijabreligious or similar flags in the classroom until further notice.
On March 15, the High Court issued its judgement. This confirmed the ban issued by the state government, and ruled that wearing the hijab was not considered an essential religious practice and that the ban did not violate the fundamental right to freedom of speech and expression .
Read also : Dissecting Karnataka HC Hijab Judgment
A petition has been filed with the Supreme Court hard the judgment of the High Court. The motion is heard by a division bench consisting of Judges Hemant Gupta and Sudhanshu Dhulia.
The key questions identified by the court are:
- Does the GO banning the hijab in educational institutions violate the fundamental right of Muslim students to freedom of religion?
- Is wearing the hijab an “essential religious practice” for Muslims?
- Does the hijab ban violate Muslim students’ right to freedom of speech and expression?
- Does the hijab ban violate the privacy rights of Muslim students?
What is the place of equality?
The arguments in this case relate to the constitutional validity of the fundamental right to freedom of religion (and the essential doctrine of religious practice), the right to privacy (considered part of the fundamental right to life and liberty speak Supreme Court in 2017), and the fundamental right to freedom of speech and expression. In addition, administrative law and statutory interpretation are also considered when considering whether the government could regulate dress code in schools.
However, one aspect that goes hand in hand with fundamental rights arguments is that of equality and non-discrimination.
First of all, Section 15(1) of the Constitution prohibits intersectional discrimination. I have already discussed the concept of intersectionality and intersectional discrimination in the second part of this series. Muslim women are doubly discriminated against on the basis of religion and gender. Supreme Court judgments in Navtej Singh Johar & Ors. against the Union of India (2018) and Patan Jamal Vali vs Andhra Pradesh State (2021)read together, broadened the interpretive field of Section 15. The case of schoolgirls and college girls wearing the hijab needs to be looked at from the perspective of religion and gender.
Second, the GO, although neutral in its language, perpetuates indirect discrimination against Muslim women and girls. The Supreme Court, in Lieutenant Colonel Nitisha & Ors. against the Union of India (2021), explicitly recognized indirect discrimination and considered that an apparently neutral provision can have a disproportionate impact in relation to the prohibited grounds. Moreover, the prohibition applies only to the wearing of the hijab and does not apply to analogous practices such as the wearing of the turban or kirpans by Sikh students, or the wearing of bindi. However, Judge Gupta had estimated last week that the practices are not comparable like wearing the kirpan, for example, is recognized by the Constitution.
Read also : Karnataka hijab row: behind the craving for discipline
Several reports and research papers have been writing on how this ban violates constitutional guarantees of equality and non-discrimination. This article only highlights the main arguments above.
If it is successfully argued that the hijab is an essential religious practice, then Muslim women who do not wear the hijab may be compelled to wear the hijab under the doctrine, since the Supreme Court would have recognized it. Does this then mean that any Muslim woman not wearing the hijab is not a true muslim? Likewise, if it is argued that the hijab is not an essential religious practice, Muslim women who choose to wear the hijab will be denied access to education.
In the next section, I examine what the effects of applying the essential religious practice doctrine might mean for Muslim women.
Patriarchal religious ideology
The questions formed in this case come from a place of patriarchal and religious ideology. He wonders if the hijab is an essential religious practice. This line of questioning and problem framing takes away the autonomy of Muslim women to make decisions about their religion, cultural practices and self-expression. It then becomes a question of what is permitted by religion.
However, Muslim women and girls, like all other women, are diverse. Some may choose to wear hijab while others may not. Some may profess their faith (openly), while others may be agnostic or atheist. Despite this, affiliation with society due to name and other categories of identity would place all women as Muslim.
When this is the case, what would the application of the essential religious practice doctrine do? If it is successfully argued that the hijab is an essential religious practice, then Muslim women who do not wear the hijab may be compelled to wear the hijab under the doctrine, since the Supreme Court would have recognized it. Does this then mean that any Muslim woman not wearing the hijab is not a true muslim? Likewise, if it is argued that the hijab is not an essential religious practice, Muslim women who choose to wear the hijab will be denied access to education.
Either outcome restricts a certain category of Muslim women to their autonomy, choice and full enjoyment of their rights. It is therefore problematic to frame the questions within the framework of the essential religious practice doctrine.
Read also : Interpreting the hijab: why only through the doctrine of “essential practices”?
It is also a clear example of the prevailing stereotype and prejudice against Muslim women. Issues concerning Muslim women’s rights are always seen through the prism of religion, not through a double prism of religion and gender. Whether it is talaq, the maintenance of women or the wearing of the hijab, the rights of Muslim women are defined piecemeal in the tenets of Islam.
Issues concerning Muslim women’s rights are always seen through the prism of religion, not through a dual prism of religion and gender.
This is a deeply rooted prejudice that anchors all Muslim women in a stereotypical gaze and strips them of their dignity and decision-making autonomy. This is contrary to the idea of real equality.
Drop the homogeneous lens
In this series, we see the many ways in which intersectional discrimination against Muslim women manifests – whether in the criminal justice system, employment laws, or labor laws. It stems from prejudices and stereotypes about Muslim women made from a cookie cutter mold – cut from the strict religious tenets of Islam. This denies the great diversity of Muslim women in India, claiming their dignity through bravery and self-reliance: the way Bilkis Bano fought her case bravely in court, to Muslim women lead the protests against the Citizenship (Amendment) Act 2019 in 2019-2020, to an organization directed by a muslim woman highlighting discrimination in employment practices faced by Muslim women.
Read also : Warisha Farasat: ‘Muslim women don’t need to be saved’
Even the hijab ban case, which was also tempted to be portrayed by some as helping Muslim girls escape regressive religious practices, showed the grace and courage with which young Muslim girls gathered, protested and used tools in the arsenal of any Indian citizen when it comes to constitutional rights.
Women’s rights are diverse; similarly, the problems of Muslim women are diverse. A homogenous understanding of our rights is a disservice to the plurality of the Indian population.
