(This was first published on 3 March 2022. It has been republished from The Quint's archives in light of the Karnataka HC upholding the hijab ban.)
Much has been said and written about the controversy of girl students wearing hijab to schools and colleges. As unfortunate as it may be to even address this issue as a matter of debate, one is forced to express one’s apprehension at what this controversy entails in addition to the irreparable communal damage that it has already caused.
One of the biggest fears that comes to mind when one thinks of what a legal ban on wearing of the hijab would entail is that of the loss of a woman’s agency.
In a society where all women irrespective of their age, caste, religion have to think twice before stepping out in the evening, it seems extremely unfair and insensitive to ask them to wear or not wear something that makes them uncomfortable.
It may be that a Muslim girl chooses to wear a hijab on account of her religious beliefs but even if the said choice is made simply to avoid lecherous looks from the opposite gender, she cannot be asked to remove the same if, doing so, causes her distress. This assertion is without prejudice to the argument that wearing of hijab is an essential religious practice.
Losing Focus Of Real Problems
At this juncture, its crucial to note that with the increase in crimes against women, specific sections had to be added to the IPC in 2013 that made acts of sexual harassment (Section 354A), assault/use of criminal force with intent to disrobe (354B), voyeurism (354C) and stalking (354D) punishable.
In other words, it’s a legally recognised fact that women in general are not safe the moment they step out of their houses.
It’s very unfortunate to see that in a country which suffers from extremely low rate of education, specifically girl education, the uniform that girls wear should get any kind of priority.
The focus should clearly be on educating as many girls as possible by providing them with an environment that is conducive with their sense of safety and security. Forcing a girl to choose education over comfort and faith amounts to imposing an extremely unreasonable condition that violates not only her Right to Education but also is an infringement of her Right to Personal Liberty.
A Tool of Oppression
It’s crucial to remember that what a girl chooses to wear is a very personal choice that cannot be interfered with under the guise of bringing about “reform”.
A “reform” that forces a girl to dress in a particular manner is nothing but a tool of oppression. It also shows that according to the self-proclaimed reformers, women lack the intellect that is required to decide what they should and shouldn’t wear. This, in turn, points to the perception of women as inferior beings who need guidance even for basic things such as choice of clothes.
In a statement submitted by Amnesty International to the 55th Session of the United Nations Commission on the Status of Women it was stated that:
“Under international human rights law, the exercise of the right to freedom of expression and to manifest one’s religion or belief may only be subject to restrictions which meet a stringent three-part test: they must be prescribed by law; address a specific legitimate purpose permitted by international law; and be demonstrably necessary and proportionate for that purpose. The permissible legitimate purposes – ensuring respect for the rights of others or protecting certain public interests (national security or public safety, or public order, health or morals), must be narrowly interpreted and must not be used to impose restrictions on dress which some – even a majority – find objectionable or offensive. Moreover, any restrictions must not be discriminatory or put in jeopardy the right itself or undermine other human rights.”
What Would a Ban by the High Court Mean?
The ramifications of a legal validation by the high court of the ban on hijab would be as follows:
1) Violation of Article 14: It is not a hidden fact that the Army, Navy, and Air Force – all allow Sikhs to wear turbans with their uniforms. School uniforms cannot be equated with the uniforms worn by officers of the Defence forces in terms of the high standards of homogeneity that the latter have to meet. It is simply incomprehensible that the wearing of hijab would be treated as an expression of religion and the wearing of turbans would not be bestowed with a similar approach. Thus, such an order would be a gross violation of Article 14 of the Constitution.
The message that a judgment banning hijab, if the same as passed, would send out would be that the State, as well as the Judiciary, have an issue with the professing of Islam and not with any other religion. The High Court being a Constitutional Court is the upholder and protector of the Constitution and is as such duty bound to prevent violation of freedom and rights guaranteed thereunder.
2) Violation of Article 21: The right to life has always been liberally interpreted by courts so as to expand its ambit to include different facets that constitute the overall personality of an individual. The courts have not only preserved and protected the Right to Life but have also endeavoured to ensure that people enjoy a dignified existence. The courts have time and time again come to the rescue of individual freedoms and basic choices such right to food, right to choose a life partner, right to change one’s name and so on.
However, ordering a ban on hijab, and thereby directing students to attend classes by making them ill at ease, would amount to an attack on their dignity. Asking a woman to reduce her clothing is also a blatant affront to her modesty. This simply cannot be allowed in a democratic country.
Unconstitutional Interference Of The State
Another very crucial aspect that must not escape one’s attention is that the degree of State interference in personal choices must be kept at a minimal level in general and when it emanates from backing of hecklers instead of the victims, then it must be nipped in the bud.
Instead of taking appropriate action against the miscreants who were heckling students, the State has filed several FIRs against the girl students for agitating their constitutionally guaranteed rights. In such a scenario, the mala fide of the State is writ large.
If this partial approach and unconstitutional interference of the state is not checked in a timely manner by the courts, then we run the risk of becoming a dictatorship wherein the State would decide basic things and curtail our freedoms as per its whims and fancies.
The courts are duty bound to uphold our pluralism and diversity as a nation.
Women in our country are constantly struggling and battling at various levels to step out of their homes and get an education and become financially independent. They are faced with numerous threats to their safety on a daily basis which act as a hindrance to their overall development.
This being the position, creating unnecessary, unconstitutional, arbitrary, discriminatory and illegal hurdles in path of women who wish to receive an education, through a State order, is a grave sin. To grant judicial sanction to the same is an unforgivable one.
(Rashmi Singh is a Delhi-based lawyer. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)