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  • Sonu Kumar

The Hijab Debate Balancing Religious Expression with Public Regulations

Updated: Apr 14

By: Sonu Kumar, 4th year(8th Semester) BBA LL.B. , Lovely Professional University, Phagwara, Punjab

The Hijab Debate: Balancing Religious Expression with Public Regulations

Abstract:

This article discusses the controversy surrounding hijab in India, particularly a recent court case where Muslim students were denied entry to schools for wearing hijab. The article argues that wearing hijab is a religious right protected by the Indian constitution and should be allowed in schools. This article puts forth the arguments against hijab, in favor of hijab and includes concerns about women. Conclusion comes out to be that both sides i.e., those who favor hijab and those who are against it should find a peaceful solution and that women should have the freedom to choose whether or not to wear hijab.

 

Keywords

hijab, controversy, education, fundamental rights, freedom of religion, freedom of speech, constitutional rights, Karnataka, ban, court rulings, secularism, religious freedom, women empowerment, choice, discrimination, protest, legislation, Indian Constitution, societal norms, women's rights, cultural practices.

Introduction

In the recent few months, educational environments seem worried about attire of students, with hijab being the controversial topic. Hijab is a scarf or clothing worn by Muslim women to cover their hair in order to maintain modesty and privacy from unrelated males either in public or at home.[1] This article explores a critical issue: should religious clothes become a barrier basically for students in their education?


The government should strive to socially integrate people as much as possible. That they live together in unity and harmony. And at the same time, they get as much freedom as possible. That the people be free to do what they want, that they have a freedom of choice, as much as possible. But recently, a School in Karnataka denied entry of six girls wearing Hijab which makes everyone question the Freedom of Religion and also the Freedom of Speech and Expression under Article 25[2] and Article 19(1) (a)[3] of the Constitution of India.

 

The news claimed that in several schools and colleges in Karnataka, hijab has been banned, due to which, many girls are not allowed to enter into colleges, they're not allowed to study. They protested it, and in its response, some people started a counter-protest by wearing a saffron shawl. In some places, these protests turned into slogans, in some places, the girls were harassed. And in some places, we even saw instances of stone-pelting. Things have gotten so out of control and violent, that the Chief Minister of Karnataka had to decide close the schools and colleges for 3 days i.e. 9th ,10th and 11th of March 2022.[4]

In Islamic Scripture Hijab is a scarf or clothing worn by Muslim women to cover their hair in order to maintain modesty and privacy from unrelated males either in public or at home.[5] The concept, however, is not unique to Islam but embraced by other religions too such as Judaism and Christianity.

 

·     Burqa And The Hijab are Two Different Aspects

Burqa has been banned in many countries due to security reasons. In many European countries, there are restrictions on wearing the Burqa or covering the face in any way.[6]

A main argument for the burqa ban is security, especially in government areas such as Parliament House. It has been suggested that rather than a blanket ban, people wearing face coverings be required to show their face for 'security and identification purposes' in these places exclusively.

 

The hijab is a head covering for Muslims. If the Freedom is a threat to the sovereignty of India, a threat to India's security, or the public order is being hampered, or it is a contempt of court, or it is violating decency or morality.[7] These are the reasons that are cited for imposing any restrictions on a fundamental freedom. But wearing a hijab doesn’t contravene any of these.

 How have countries so far ruled on hijab?

Countries like France have banned hijab from schools and the highest court of the European Union, has stated that in the European countries, it is up to the employers, if they want, they can ban hijab in their workplace as well. It is up to the companies, basically. But the secularism practised in France and some other European countries Is the Negative Secularism. The government tries to distance every public institution from all religions. That's why any sort of religious dress, or any kind of a religious symbol, is often banned.[8]

In countries like India and America, the kind of secularism that's practised, is known as Soft Secularism. That the government, wouldn't be averse to religion completely. It would include religion by supporting all religions equally. It would support religious activities,

but equally.

 

Hijab is not allowed in a number of public institutions and regions across Europe and Central Asia. An example of such restriction is Austria, where in 2019 headscarves became banned for girls under the age of ten in schools.[9] A similar law exists in France that prohibits students from wearing any religious symbol in schools, while Bosnia and Herzegovina do not allow wearing religious clothes at courts or administrative buildings.[10] Hijabs have been prohibited since 2009 in Kosovo’s public schools, universities, and official buildings. Although they are not completely restricted, some educational centers in Kazakhstan and Kyrgyzstan have also banned female students from having head coverings. At the same time, there is regional ban on hijabs as regards Russia with the Republic of Mordovia as well as Stavropol Territory being against their use within schools or other higher educational institutions.

How is religious freedom protected under the Indian constitution, and how have courts ruled on wearing a hijab?                                                                  

It is there in the Indian Constitution, that every citizen has the right to practice and promote their religion peacefully. So, it is their right to wear the hijab. It is their right bestowed by the Indian Constitution. But with every right in the Indian Constitution, there are some reasonable restrictions. If the Freedom is a threat to the sovereignty of India, a threat to India's security, or the public order is being hampered, or it is a contempt of court, or it is violating decency or morality. These are the reasons that are cited for imposing any restrictions on fundamental freedom. But wearing a hijab, doesn’t contravene any of these.[11]


Muslim women protesters then challenged the ban in court, saying it was discriminatory and went against their right to freedom of expression and religion. They said that India's constitution gave them the right to dress as they pleased and that their faith required them to cover their head.

The government argued that the state had the right to prescribe school and college uniforms and also questioned their claim that the hijab was essential to their religion. The trial court agreed that the government had the right to prescribe uniforms for students and barred hijab-clad girls from classrooms.[12]

The Karnataka high court - which upheld the order on appeal - quoted from the Quran and other Islamic religious texts to say that wearing the hijab was not an essential religious practice and not wearing one did not make anyone "a sinner". 

 

The order led several Muslim women to skip classes and even their exams. The row also polarised opinions - Karnataka is ruled by the Hindu nationalist Bharatiya Janata Party (BJP) and critics called it yet another attempt at marginalising Muslims since the BJP, led by Prime Minister Narendra Modi, came to power in India in 2014.

Nobel Prize-winner Malala Yousafzai, who was 15 when she survived an attack by the Taliban in Pakistan for speaking up for the right of girls to be educated, also weighed in on the debate, calling on India's leaders to do something to "stop the marginalisation of Muslim women".

The court case in India is being keenly watched globally as it comes at a time when protests over the hijab have also been sweeping Iran - although women there are fighting for their right to not wear headscarves.

Current Situation of Hijab in India

The hijab controversy erupted again when BJP’s new MLA from Hawa Mahal, visited the Government Senior Secondary Girls School in Gangapol, Subhash Chowk, and questioned the two forms of dress code for girls in school, where he pinpointed at the Muslim students who were wearing hijab and burqa for the school annual function on Jan 27, 2024. The girls protested against the legislator at the Subhash Chowk police station, demanding an apology and an FIR against the MLA. This controversy made Rajasthan government to seek information from other states regarding how hijab is treated in educational institutions[13].

In India the relevant case of Aishat Shifa v. State of Karnataka, the court examined that whether Muslim girls in schools can wear Hijabs. The case revolves around Article 13, Article 19(2), Article 25, Article 73 and Article 162 of Indian Constitution mainly concerning fundamental rights and the power to make laws. Justice Hemant Gupta in this case believes that government can give school committees the power to decide the uniforms which includes ban of hijabs. He further argues that Government has right to make rules for education. Another part of the argument is whether the government order violates a rule about uniforms in schools (Rule 11 of the 1995 Karnataka Educational Institutions Rules) and Hon’ble Justice stated that he impugned Government Order did not violate R. 11 of the 1995 Rules Education Law Karnataka Educational Institutions. As per the Karnatka High Court judgement.[14]

In February 2022, the state of Karnataka implemented a ban on hijab in classrooms of educational institutions. This ban was challenged in court, and the Karnataka High Court upheld the ban in March 2022. The Supreme Court case on the hijab ban ended inconclusively in October 2022. In December 2023, the Karnataka government led by the Indian National Congress revoked the hijab ban. And currently, students in Karnataka can wear hijab in schools again. The case right now is still in progress and there has been split judgement resulting in ambiguity. Case is transferred to Chief Justice of India and a constitutional bench is required to be established for the same.

Arguments regarding the Hijab

People that are against the hijab say that it is a symbol of patriarchy. Most women don't wear a hijab because they choose to do so, rather, they wear it because their family, the community surrounding them, force them to wear this. If they don't wear the hijab, they wouldn't be accepted or included in their community. And that they would be harassed.[15] They'd be either forced to comply or would be treated as second-class citizens.

This is similar to what people say about Ghoonghat. [Veil; traditionally Hindu] And it does have a point. Because we witnessed several protests in multiple countries where thousands of women took to the streets, to protest against compulsory hijab. A recent example is the 2017-2019 Iranian protests. Women didn't want to be forced to wear a hijab compulsorily. The argument here is about Women Empowerment and Freedom of Choice.


What if hijab gets banned in schools?                                                        

The girl might be withdrawn from the school. She wouldn't be allowed to go to school anymore. Or send her to some other religious school. And if there are no religious schools nearby, the parents may not allow the girl to go to school at all. They may get their daughter married off and build a new future for her. It is basically robbing the girls of their opportunity of getting an education.


What if hijab is allowed?

If hijab-wearing girls are allowed to go to schools and colleges, those girls can then complete their education. They'll get educated and perhaps then after they get an education, they'll teach their next generations, their children, about freedom of choice. And wouldn't let hijab be forcefully imposed on them.


Pros And Cons                                                                      

If it is allowed to go to school in hijab today, tomorrow, someone can wear a burqa to school. It will be their freedom of religion. And tomorrow if I say that I am starting a new religion, and in my religion, it is allowed to go to school in a bikini as well. So someone may wear a bikini to school. How can we stop this from happening? What would be the reasoning for this? And the second disadvantage is that because it is very difficult to draw a line here, it becomes much easier to politically exploit people.


Obligatory Hijab                                                                  

Most western countries are struggling to view the hijab in a positive light because there is limited information about the reasons why women put on a hijab. While every Muslim woman has her reasons for donning a hijab, with the primary reason being their culture and religion, the hijab has remained a controversial issue. Some find it as a form of liberation, while others find it oppressive, and this continues to provoke raging debates across the globe. Hence, while some Muslim women choose to wear the hijab, most of them disagree that it is not a choice, but an oppressive Muslim culture that should not be mandatory for all Muslim women if they don't wear the hijab, they wouldn't be accepted or included in their community. And that they would be harassed. They'd be either forced to comply or would be treated as second-class citizens. Because we witnessed several protests in multiple countries where thousands of women took to the streets, to protest against compulsory hijab. A recent example is the 2017-2019 Iranian protests.

 Conclusion

The hijab has remained a questioned symbol with different meanings to several groups of people. Both sides should come together and calmly discuss it to peacefully arrive at a solution. And if it fails, the High Court or the Supreme Court should be given the task of drawing the lines and making the rules about what is allowed and what isn't. It is difficult but there is a dire need for the same. The girls are forced to wear a hijab, the solution to this is through women empowerment for which there is a dire need for education. This is a complex paradox, but Muslim women should be given the freedom to choose whether to wear the hijab or not to uphold the values of freedom and choice to all.

 

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[2] The Constitution of India 1950, Art 25.

[3] The Constitution of India 1950, Art 19.

[5] Hameed, Shahul (9 October 2003). "Is Hijab a Qur'anic Commandment?". Archived from the original on 4 April 2023. Retrieved 2 Apr 2024.

[6] The Islamic Veil across Europe’ BBC News (31 May 2018). https://www.bbc.com/news/world-europe-13038095. accessed 8 September 2020.

[8] Fredette, Jennifer (2015). "Examining the French Hijab and Burqa Bans through Reflexive Cultural Judgment". New Political Science37: 48–70.

[9] Oltermann, Philip. "Austria to ban full-face veil in public." The Guardian. Guardian News and Media, 31 January 2017.

[12] Aishat Shifa v. State of Karnataka, 13 Oct 2022.

[13] “Rajasthan government mulls seeking status report on hijab ban from other states” https://www.deccanherald.com/india/rajasthan/rajasthan-government-mulls-seeking-status-report-on-hijab-ban-from-other-states-2871178, On 2nd Apr 2024.

[14] Aishat Shifa v. State of Karnataka, 13 Oct 2022.

[15] Hameed, Shahul (9 October 2003). "Is Hijab a Qur'anic Commandment?"

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