Two Hijab Cases, One Lesson

In all the discrepancies between the stories from Madhya Pradesh and Karnataka, there is one thing that is consistent, which is to impose on people at the margins an idea of 'uniformity'.

It is tiring to chart out the ‘discriminations’ every now and then. One more death. One more humiliation. A child slapped for being born a Muslim. A poster asking people to leave a slum for their religious identity. What is scary is you slap three more children for the same reason and the reports will start shrinking in the newspapers. Readers will start getting ‘bored’. The normalcy will prevail. The blindness shall take over.

One such news that has become a story long gone is the hijab ‘controversy’ of Karnataka. I repeat it in a line since I feel it is my duty to repeat it, but not more than a line perhaps, may bore the readers otherwise.

So, here we go: There were teenage girls in Karnataka who were stopped from getting an education in a government institution for wearing an extra piece of cloth – the hijab. The restriction was challenged. The matter traveled from a single-judge bench to a full bench of the state’s high court.

How come uniforms be inclusive? How can religious symbols be allowed in schools? Was asked by the court. The matter came before the highest court of the land – the sentinel on the qui vive, as it calls itself. Eleven days of passionate arguments and a split verdict came. The matter awaits its listing after almost a year from the judgment. Even after the change in the state government, on the ground, the government order (GO) that cemented the controversy stands. The agony of the Muslim girls in Karnataka continues.

Also read: ‘People Think No Woman Could Wear a Hijab Out of Choice’: Stories of Everyday Discrimination

Damoh, Madhya Pradesh

Fast forward to this year, another Indian state, this time a private minority institution, again the issue of uniform and hijab. The court order, interestingly, but unsurprisingly, is vastly different. The order records the prosecution story of how a private minority institution in Damoh, Madhya Pradesh, has a uniform of shalwar-qameez and hijab for girls students, and non-Muslim students are not being allowed to put tilak and tie kalawa. Urdu is being taught as a compulsory subject.

The parents of non-Muslim students denied claims of religious symbols being forced on their children. Be that as it may, the news spread like wildfire. The initial probe cleared the school from allegations of forcing Hindu students to wear hijab. A fresh probe was ordered by the home minister of the state. The state government promptly suspended the license of the private school.

Students stand outside a college as they boycott classes after being denied entry with hijab in the college premises, in Chikmagalur, on February 21, 2022. Photo: PTI

The chief minister of the state publicly warned that any institution following in the footsteps of the Damoh school should not be allowed to run. The chief minister also registered his protest against “teaching poetry of a man who talked about the division of the country” (Dr. Muhammad Iqbal, the writer of Sare Jahan se Acha and Lab pe aati hai dua). A first information report (FIR) under Sections 295A, 506, and 120B of the Indian Penal Code (IPC) was registered. Provisions under the Juvenile Justice Act and Madhya Pradesh Freedom of Religion Act, 2021 alleging forced conversion of Hindu students were also invoked. Three people including the principal were arrested.

In typical ‘new India’ fashion, parts of the school, the only English medium school in the area catering to around 1,200 students from modest backgrounds, were also demolished. Last month, applicants, the principal along with the other two arrested, approached the Madhya Pradesh high court for bail. The high court granted bail while imposing certain conditions to be strictly followed by the applicants.

The MP high court directed the applicants to not prevent non-Muslim students from “wearing the essentials of their own religion as such wearing a sacred thread (kalawa) and putting tilak on the forehead”. The court, recording the argument of the state that non-Muslim students cannot be compelled to read Urdu, further directed the applicants to not compel the non-Muslim students to read/study any language which has not been prescribed by the state’s education board and impart only “modern education”.

The high court accepting this submission can be criticised on several grounds, one among them is the fact that Urdu, in fact, is a recognised language under the Board of Secondary Education (Madhya Pradesh) Regulations, 1965. Lastly, the applicants were strictly directed that “girl students of other religion i.e. Hindu and Jain etc. shall not be compelled to wear head scarf (Hijaab) anywhere in the school premises or in the classrooms”.

In the hijab matter before the Karnataka high court, the government order (GO) dated February 5, 2022, upheld by the court, reads that where the uniform in question is that of a private school, the uniform shall be decided upon by the school management. This reading of the GO was accepted by the Supreme Court in its judgment by both Justice Gupta and Justice Dhulia, with one upholding the GO and the other quashing it.

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

One more case that requires a mention here is from Kerala. In 2018, when Muslim girls approached the Kerala high court against not being allowed to wear a hijab in a Christian minority institution, the court was of the opinion that the “community rights of a minority institution override the individual rights of students”. In the hijab matter, the Karnataka high court, while distinguishing the judgment on facts, recorded agreement with the ratio of this Kerala high court judgment. It is relevant to mention here that the Damoh School is a private minority institution and the uniform was prescribed by the school management.

In Karnataka, the latter part of 2021 and 2022 witnessed strong protests by young Muslim women and the Muslim community at large against the restriction on hijab. With the state government and judiciary supporting the restriction, the state of Karnataka witnessed a steep dropout rate of Muslim women from government institutions and pre-university colleges. Those who could afford, opted for private institutions to continue their studies, others vanished from the face of educational statistics.

What remained floating was one of the reasons for such a prohibition: the idea of uniformity. The exclusion of religious symbols from educational institutions. This reasoning was even bought by some of our liberal allies. This very ‘reasoning’ falls flat with the Damoh case. The series of incidents, the employment of all judicial and extrajudicial methods to create a precedent against the school in Damoh, and the subsequent conditions imposed through the bail order, only reinforce what has been argued for long by those who are direct victims of this identity attack.

In all the discrepancies between the stories from Madhya Pradesh and Karnataka, there is one lesson that is consistent: a ‘Hindu’ must not be prevented from wearing a kalawa or putting a tilak. A ‘Hindu’ must not be told what to wear. We do not want it for “our people”. We cannot be told not to follow “our faith” in “our country”. The disgust towards a language that is regarded as Muslim. This is what it is. This is what it has always been. The Damoh story is an Indian story. It is another testament of something overt that the people at the margins always knew. It is either our blindness or our cowardice to not see the obvious.  

Nabeela Jamil is a Delhi-based lawyer. She assisted on the Hijab matter from the Petitioner’s side before the Supreme Court of India.