Throughout the centuries, there has been a constant uproar for equal rights for women, minorities, the LGTQIA+ community, etc. Eventually, the debate falls prey to a binary of a certain type.
Presently, the binary in the hijab controversy in Karnataka is between a patriarchal practice and the right of the individual to freedom of religion, amalgamated with the rights to education, and life and liberty.
The present uproar is not novel; there have been several earlier incidents in the context of hijab being a religious practice to be saved by Article 25 of the Constitution. In Nadha Raheem (2015), the Kerala High Court ruled that an order by the Central Board of Secondary Education (CBSE) prescribing a dress code cannot be upheld in light of the diversity of religions and cultures practiced in India. Further in 2018, the Kerala High Court again dived into the question of hijab being a religious practice and thus liable to be protected under Article 25. The Court referred to several verses of the Quran and Hadiths and concluded that wearing of hijab is indeed a religious practice.
The problem extends beyond the legality of the practice; it becomes entangled with the continuous fight of the feminist movements for a more liberal understanding of society. Any type of purdah, ghoonghat, or hijab which is mandated by any societal norm cannot stand the test of progressive liberal ideology. Hijab or burqa has been called a matter of choice by the religious groups, but the contention can never be proved beyond doubt clouded by patriarchal sight.
The counsel appearing in the present case attempted to establish hijab as an essential religious practice for females, mandated by the Quran. The argument that hijab is a matter of choice walks out of the fallen wall since it has been argued to be a law, non-adherence to which might invite sanction from God itself. The question that arises from this is: can it be banned to an extent as to deny the people of their other rights? And the answer is not as simple as a negation.
This ban does not work to put rest to a conservative practice, but it incites emotion in favour of it. The choice of clothing is an individual expression, and it is covered as a fundamental right of the person. The State thus is devoid of any claim against it unless it is proved that the practice is incompatible with public spaces, schools, and colleges in the case at hand, as pointed out by Gautam Bhatia. Further, this also can only be done by the test of reasonable restrictions or exceptions to the freedom of religion provided in Part III of the Constitution.
The duality becomes complex as we move on to argue for or against the practice. The reasoning plays a more crucial aspect of the dressing, in general as well, females bear through a plethora of stereotypes and prejudices attached with clothing. It is not just religious but societal pressure which makes a woman wear what she wears. The choice is not free of external influence and when the influence is of God, it becomes inadvertently forcible. In such circumstances, it is difficult to judge the practice merely based on being an oppressive religious practice; it grows deeper than that and works wider than expected.
Though the path of the case in unclear, the bottom line is; that no one should be stopped from attending educational institutes just because of their choice of certain clothing. It is a matter of freedom of expression and that of right to education. No religious practice or State can be a hurdle to that. The choice of an individual to follow a certain faith is a private affair, which must be left untouched.
However strong arguments are provided against the conservative patriarchal nature of the hijab or purdah, it remains protected under the fundamental rights of the person. It cannot be the view of the outsider to judge the practice of one’s faith. Neither can it be the view of the State to arbitrarily ban any such practice. Rather, it is the duty of the State to maintain not only religious neutrality but also to aid the religions to thrive, following the Indian concept of positive secularism.
The feud between this duality of an ideology and that of the right of the individual to religion are entangled in one thread; isolation of one from the other would create a pseudo-understanding of the issue. This cannot be adjudged by policing beyond the required reach. There is an urgent need for a constructive path to harmonize the freedom of the individual and tackle the conservative practices. It cannot be done by a forced ban, and certainly not by stopping children from attending schools and colleges.
Prabhat Singh Rana is a practicing lawyer in Delhi.