Hijab Ban: The Marriage of Convenience Between Zealotry and Judicial Illogic

The controversy about whether Muslim girls can wear an extra piece of cloth matching the colour of their school uniform can only be understood in the context of the systematic marginalisation of Muslim identity in Indian life.

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The Karnataka high court verdict on the hijab ban is the last nail in the coffin of Indian Muslims’ sense of creedal security in their own country. It tells the Muslims that you not only have no right to practise your faith the way you understand it but also that you do not have the confessional autonomy to determine what are the essential practices of your religion. While some non-Muslim Maulvis disguised as judges will decide on the theological and jurisprudential questions regarding the practice of your faith, you just sit tight and enjoy life.

The ‘essential part of religious practices’ test that the judges applied in clinching their verdict is flawed on three grounds. First, one of the rare things that all sects within Islam agree on is the stricture that believing women should cover their heads. Whether this is a patriarchal practice or one that is reflective of the secondary status assigned to women is not germane to the current debate. If an overwhelming majority of people belonging to a faith consensually believe that a certain sartorial or ritualistic practice is essential for their religious life, a court of law does not have any right to reject it so long as the practice in question does not violate constitutional or humanitarian principles.

Second, the ‘essential part of religious practice in Islam’ test which the honourable judges applied in reaching their verdict is impertinent as well as absurd. Suppose the issue concerned the practice of untouchability in a few schools rather than the wearing of the hijab. If a group of Hindu students approach the same high court arguing, on the basis of the Shastras and Smritis, that untouchability is an essential part of their faith, how would the honourable court respond? If mere textual inferences are enough to clinch a verdict in matters like this, there is sufficient scriptural material in Indian religious texts that can ‘confirm’ that untouchability is essential to the practice of Hinduism.

Consider another interesting situation: The government of India decides to raze to the ground all the dargas in the country, including those in Nizamuddin and Ajmer Sharif. Muslims move the court against it but the government argues that erecting mausoleums is not an essential part of Islam. It even goes further and contends that the practice of tomb worship is even antithetical to the principles of Islam. Scripturally and speaking from a strict Islamic monotheistic perspective, the argument is indeed valid. Does that mean the government of India has the right to eradicate Muslim mausoleums across the country and invalidate a religious practice held by a majority of Muslims in India? Is this how issues of such sensitive nature are resolved in a mind-bogglingly diverse country like India? 

Also Read: Why Judges Should Not Interpret Religion

Third, the arguments against the hijab in schools that prescribe uniforms for pupils and their endorsement by the court are a rejection of the idea of ‘unity in diversity’, the most truthful and eloquent description of the identity of India as a nation-state. In debates like uniformity vs diversity, singularity vs plurality, homogeneity vs heterogeneity, the rights of schools to impose their sartorial dictates on pupils vs religious freedoms, the Indian constitution and the ethos that defines the idea of India unequivocally side with the latter.

Therefore, it is possible to argue that the verdict of the Karnataka high court tramples upon the spirit of the constitution and the wisdom of the founding fathers. Judicial endorsement of actions aimed at communal polarisation is not the only issue in question. Judicial vindication or rejection of something on the basis of whether or not it is an essential part of a particular faith can throw up bizarre and absurd situations like the ones mentioned above.

But then the vast majority of Modi-loving Indians may not sense the absurdity of it all because these verdicts all concern only one particular faith, whose followers have become the pet peeve of the proud nation. A marriage of convenience between communal zealotry and judicial illogic is now commonplace in ‘new India’.

The two verdicts on the Ayodhya title case and the demolition of the Babri mosque were eloquent examples. The verdict on the demolition of the mosque almost made one feel that a medieval mosque had decided to die by suicide one fine morning in December 1992, but wanted to camouflage it as the handiwork of a frenzied mob. Suicide is a sin in Islam and hence the poor mosque felt its sin should not be known to the public. As a result, great Indian patriots like Advani and Uma Bharti got implicated in a fabricated criminal case. What a shame!

The whole controversy about whether Muslim girls should or should not be allowed to wear an extra piece of cloth matching the colour of their school uniform can only be understood in the context of the systematic marginalisation of Muslim identity in Indian life. All other debates – the Muslim patriarchy, wearing of the hijab is by choice or coercion, orthodoxy among Muslims, the visual obscenity of the black purdah becoming a uniform for Muslim women – are indeed relevant, but absolutely outside the frame of the current issue.

A few institutions run by Hindu zealots come up with a new ploy to bully the Muslims. It becomes a national issue. Muslims are pushed into a position of defending even those rights they enjoyed for decades and thought were naturally theirs. The court steps in and endorses the decisions of the zealots. The pattern is revoltingly predictable but will be seen by the Muslim Indians as part of a larger design for genocide by other means.  

Shajahan Madampat is a writer and cultural commentator writing in Malayalam and English. His latest book is God is Neither a Khomeini Nor a Mohan Bhagwat: Writings Against Zealotry.