Right to Hijab - A fundamental right?
Cracks and crevices in the protest and the legal position today
What is the controversy all about?
On December 28, 2021 eight girls in a pre university women’s college at Udupi began wearing headscarves and burqas on campus. The college objected against adorning religious garb on campus and asked the girls to desist. The girls refused and continued to wear headscarves and burqas on campus. As a result thereof, the college banned any religious garb altogether on campus.
The issue turned into a full fledged controversy when similar protests started being staged by muslim women in various parts of Karnataka. Consequently, 5 educational institutions, including the women’s college at Udupi, banned headscarves and burqas on campus and started denying entry to any woman wearing the same. Out of these five colleges, three are government run and two are private educational institutions.
The issue has now made national headlines, as the Karnataka government issued a directive validating the decisions of various universities to prohibit muslim women from wearing headscarves and burqas. The government has said that “clothes which disturb equality, integrity and public law and order should not be worn”
One student has also filed a petition before the Karnataka High Court to challenge the directive of the State government as well as the decision of various educational institutions banning headscarves and burqas.
What are some of the problems with the protest?
Keeping the legality of the burqa/headscarf ban aside (which will be dealt with in the latter part of this article) there are a few chinks in this movement that need to be addressed.
1) The headscarf and burqa - a recent controversy
What is interesting about the protest is its abrupt beginning. Before December 28th last year, students at Udipi were neither adorning any religious wear, nor making an issue of the same. Infact, college authorities have reported that this issue has recently surfaced for the first time. So did muslim women in Udupi only recently realise they are not covering their heads and bodies as prescribed in the Quran and the Hadith’s?
The abrupt beginning of the movement, makes it hard to trust.
Moreover, the protesting women have reasoned that if Hindu festivals are celebrated in the college, why should hijab be a problem? This seems like a strange question to pose. Are the protests a retaliation to Hindu festivals being celebrated? In a Hindu majority state? In a college with a majority Hindu population?
If the allegation is that a secular state should not be sponsoring Hindu festivals in a government run college, then the protests should be against such sponsorship. However, the protestors have chosen to take up an entirely different cause altogether. What does a ban on the headscarf/burqa have anything to do with celebration of Hindu festivals?
Their reasons and justification for suddenly wearing their religious identity on their sleeves, scarcely seem credible. The colleges have allegedly been celebrating Hindu festivals since time immemorial. Why has this become a point of dispute only now?
2) The protests seem politically motivated
The fact that the protests are politically motivated is clear for everyone to see. Even muslim organisations in Udupi district have claimed that the protest was only being used to stir controversy after the results of the urban local body elections were announced in December.
An article of the Indian Express has reported the following quote by Abdul Azeer Udyavar - the organising secretary of the Udupi District Muslim Okkutta and district President of Welfare Party of India:-
“It (controversy) started after the results of the urban local bodies elections in December. (Now) it is being used to polarise voters,” said Abdul Azeez Udyavar, organising secretary of Udupi District Muslim Okkutta, also district president of the Welfare Party of India. “If hijab was an issue for students, I am sure parents would have brought it to our notice. It could have been solved without much hype.”
Thus, it is clear that even local muslim politicians are looking at the protests with a healthy skepticism and have raised valid questions on its timing. So far, it seems like this country is looking at another politically motivated protest under the garb of human rights. These have become unfortunately common in India.
3) The involvement of Campus Front India cannot be ignored
Campus Front of India (CFI) is a political organisation calling itself a “neo-social students movement, which aims to empower the campuses by developing a new generation of activists”. It claims to strive for the “oppressed sections of society” and takes the lead in resisting the “ideology and designs of imperialism and fascism”.
However, the organisation has been reported to have roots in Students Islamic Movement of India (SIMI), an organisation formed by a group of supporters of the Jamaat-e-Islami-e-Hind ( which aims to work towards the establishment of Islam all over India) in the late 1970s.
Articles by different newspapers have reported significant involvement of the Campus Front of India in organising state wide protests. For instance, the following was reported in India Express’s interview with Abdul Azeer Udyavar - the organising secretary of the Udupi District Muslim Okkuttar:-
Udyavar maintained that CFI has “used these students for their benefit”, an accusation Sadiq Jaaratthar, Karnataka unit secretary of CFI, denied.
Moreover, Times of India has, in various articles, also reported that the protests were being supported by the CFI and that the CFI had also intervened by holding discussions with the college authorities, against their decision to ban the head scarf and burqa.
Furthermore, an article by the Hindustan Times has also reported how the protests only began gaining momentum after CFI became involved. The article said as follows:-
“In October 2021, pictures of a few Muslim students at the government PU college in Udupi with a CFI banner were shared widely on social media. A message with the photos read, “These students had participated in a protest without knowing that it is a protest by the ABVP (Akhil Bharatiya Vidya Parishad). After Campus Front of India leaders counselled them today, they joined the Campus Front of India of their own volition.
Some of the students counselled by the CFI are part of the current protest. They insist their protest is not political, but a fight for their fundamental rights.
However, the issue that was limited to one college snowballed into a matter of concern across the district and subsequently the state, after the CFI came into the picture…”
The Hindustan Times’ article talks about the following picture retweeted by famous journalist Swati Goel Sharma:-
It is fascinating to see CFI fanning the flames of the protests in the background, even though its involvement has been conveniently absent from most discussions about the protest.
4) The confusion between burqas and headscarves
There has also been no clarity on what exactly has been banned and what muslim women are protesting against. As previously mentioned, the state government has simply declared a ban on any “clothes which disturb equality, integrity and public law and order”. This is awfully vague.
Who decides what clothes disturb equality?
Moreover, while most mainstream discussions have called it a “hijab ban”, every photograph of the gathered protestors shows them covered from head to toe in a burqa.
It is important to clarify that the burqa and the hijab are not the same.
A hijab is a headscarf, typically worn by Muslim women, covering their hair neck and chest. Whereas, a burqa is a full body veil, which covers the woman from head to toe.
Every picture of the protestors shows them covered in a full body veil/burqa, protesting to allow students to wear a hijab on campus.
Ofcourse, so far, this is only an academic difference, as India, unlike many other western nations, has not banned the full body veil. However, it is unclear as to whether this difference would play on the mind of the court.
The legal position on dress codes in educational institutions
So far, two judgements of the Kerala High Court have directly dealt with the issue of banning religious garb in educational institutions. One is the judgement titled “Amna Bint Basheer and Ors v CBSE” in 2016 and the other is a judgement titled “Fathima Tasneem and Ors v The State of Kerala” in 2018. Both judgements have, interestingly, been authored by the same judge - Hon’ble justice A. Muhamed Mustaque J. and both judgements make for an captivating read.
Amna Bint Basheer and Ors v CBSE; 2016(2)KLJ605
In this case, the petitioner was a candidate appearing for the All India Pre-Medical Entrance Test-2016. CBSE had been entrusted with the task of conducting such entrance test. However, in previous years there had been instances of taking electronic gadgets underneath the dress the hijab/burqa worn by muslim women. These ingenious practices adopted by some candidates even resulted in cancellation of the examination by the Supreme Court. Therefore, in the wake of large-scale malpractices in the entrance tests, CBSE decided to prescribe a dress code for the candidates
The dress code instructed the candidates to dress as follows:-
a. Light clothes with half sleeves not having big buttons, brooch/badge, flower, etc. with Salwar/Trouser.
b.Slippers and not the shoes
The petitioner submitted that the dress code prescribed as above would offend the religious dress code prescribed in Islam and would therefore negate the fundamental right as guaranteed under Article 25(1) of the Constitution of India.
Art.25(1) of the Constitution guarantees ‘freedom of conscience and the right freely to profess, practise and propagate religion’. Thus, it not only protects an individual’s right to freely practice her religion, but also protects those religious practices that are essential to her faith. Such religious practices, without which the religion is rendered meaningless, are protected by the courts under Art.25.
Thus, the Kerala High Court, in the present case, started by examining the prescribed Islamic dress code and whether or not such dress code was so essential for muslims to observe that should they be prevented from observing such it, it would render their practice of Islam meaningless.
Since I do not wish to take up the reader’s precious time and since I understand that some of you would rather not be caught in the legal-religious that the judgements of Indian courts are fraught with, let me tell you the ratio of the court right away. The long and short of it all is that the court held the headscarf and the burqa to be an extremely important aspect of Islam, which is prescribed to be mandatory for women. It considered the headscarf and the burqa as an essential religious practice for muslim women and observed that they cannot be forced to remove the hijab for the purposes of the entrance test, as it is their fundamental right to wear the same.
The court further observed that asking muslim women to violate the Islamic dress code for the purposes of the entrance test, would be contrary to the secular fabric of our constitution.
Now, if you are interested in reading how the court came to this conclusion and the religious texts it considered while arriving at the same, I assure you, it makes for the most fascinating read and it is reproduced for you as follows:-
The court started with a little introduction on Islamic scripture.
“16. Coming back to the core issue in this writ petition about the dress code; it is to be noted Islam embrace and encompass guidance to the human in all walks of life. The Shariah is the Islamic law. The Shariah consists of two things.
i. The laws revealed through Holly Quran.
ii. The laws that are taken from the lifestyle and teachings of the prophet Mohammed. This part is called Hadiths.”
The Holy Quran consist of a broad and general prepositions. It is often through Hadiths, Quranic prepositions are interpreted or explained. Therefore, validity of expected conduct of the believer rests on the credibility of reporting of Hadiths as well. The whole idea of Quranic injunctions and Hadiths is to reduce the rights and obligations to formulate certain standards of behavior of individuals in his conduct in obedience to the commands of the God.
………
As has been note above the Hadiths have significant role in determining the Shariah law. In Chapter 7 'Surah' known as 'Heights', the Quran reminds believer the requirements of following the Hadiths. In verse 157, it is stated as follows:
"Those who follow the messenger, the prophet who can neither read nor write, whom they will find described in the Torah and the Gospel (which are) with them. He will enjoin on them that which is right and forbid them which is wrong. He will make lawful for them all good things and prohibit for them only the foul; and he will relieve them of their burden and the fetters that they used to wear. Then those who believe in him, and honour him, and help him and follow the light which is sent down with him, they are successful."
In another Chapter 59 known as 'Exile', in verse 7, the Quran commands the believer as follows:
"Whatever the messenger gives you, take it. And whatsoever he forbidden abstain from it."
However, there is a possibility of reporting Hadiths in different way about life, sayings and teaching of prophet Mohamed, the Messenger. This is one of the reason, the different schools of thoughts have come into existence among the Muslims. The different propositions that may also result in conflict of views and opinions. As far as the constitutional Courts are concerned, when called upon to decide the rights premised on the freedom guaranteed under Article 25(1) or 26 is to accommodate such different propositions to honour such freedom.”
The court the proceeds to deal with the issue at hand
“The petitioners' concern is that the dress code as now prescribed would not allow the candidates to wear the headscarf and full sleeve dress. It is the case of the petitioners that Shariah mandates women to wear the headscarf and full sleeve dress and therefore, any prescription contrary is repugnant to protection of the religious freedom as provided under Article 25(1).
Therefore, this Court has to examine the nature of the dress code prescribed for women in Islam and; such prescription is an essential part of the religion or not; and if it forms part of essential religious practice, can it be regulated in the light of Article 25(1).
20. In Chapter 24 known as The Light" in verse 31 in Holy Quran, the command is as follows:
"31. And tell the believing women to lower their gaze and be modest, and to display of their adornment only that which is apparent, and to draw their veils over their bosoms, and not to reveal their adornment save to their own husbands or fathers or husbands' fathers, or their sons or their husbands' sons, or their brothers or their brothers' sons or sisters' sons, or their women, or their slaves, or male attendants who lack vigour, or children who know naught of women's nakedness. And let them not stamp their feet so as to reveal what they hide of their adornment. And turn unto Allah together, O believers, so that ye may succeed." [Ref: Ibid]”
21. In the original text in Arabic, the veil is referred as a 'Khumur'. In 'the Islamic digest of Aqeedah and Fiqh' by Mahmoud Rida Murad 'Khumur' is mentioned as follows:
"Khumur, or head cover, is the cloth which covers all of the hair on the head, while the work, 'juyoob' (pl. of jaib) means not only the bosom, as commonly thought, but it includes the neck too."
22. In the Chapter 33 known as "The Clans" in verse 59 of the Holy Quran, the command is as follows:
"O Prophet, tell your wives and your daughters and the women of the believers to lower over them a portion of their jilbabs. That is more suitable that they will be known and not be harmed. And even Allah Forgiving and Merciful." (Ref: Ibid)”
23. The reference of jilbab in the above chapter would indicate that the Islamic dress code for women not only consists of a scarf that covers the head, the neck and the bosom but also includes the overall dress that should be long and loose. The jilbab in Arabic Dictionary like lisanu-Al-Arab referred as the loose outer garment
24. In one of the Hadidhs (words of Prophet Mohammed), explaining the Quranic verses to his sister-in-law 'Asma' is as follows:
"O Asma! It is not correct for a woman to show her parts other than her hands and face to strangers after she begins to have menstruation."
[Reported by Abudawud ref: hadith No. 4092 kitab al libas (book of clothing Sunan Abu Dawud]
25. In another Hadidh reported by Thirmidi is as follows:
"Abdullah, son of Umar bin al-Khattab, with whom Allah is pleased, reported that the Messenger of Allah, said:‘On the Day of Resurrection, Allah will not look at the man who trails his garment along boastfully". Thereupon, Umm Salamah asked, 'What should women do with their garments?' The Prophet said: 'They should lower their garments a hand span,' Umm Salamah further said, 'Women's feet would still be uncovered.' The Messenger of Allah (S), replied: 'Let them lower them a forearm's length, but not longer.'
[Ref: The Islamic Digest of Aqeedah and Fiqh by Mahmoud Rida Murad]”
The court further proceeds to examine the five kinds of sharia injunctions as follows:-
26. The prescription of the dress code as above is essential or not has to be understood with reference to the Shariah injunctions. There are five kinds of rules recognized in Islamic law to classify the nature of the law for its operation which are as follows:
i. Farz: Strictly obligatory. Five times prayer, Compulsory payment (zakat), Fasting, etc.
ii. Haram: Those are strictly forbidden. Consumption of liquor, eating of pork etc.
iii. Mandub: Things which are advice to do. These are things which one fails to perform would not cause any harm to him like additional prayers apart from the five times obligatory prayers.
iv. Makruh: Which means advice to refrain from. These sins are a lesser category which is short of forbidden, such as wasting food, water, etc
v. Jaiz: This is about the things, the religion is in different. These things are lawful and would not reap any rewards.
(Ref: Outlines of Mohammadan Law by Asaf A.A. Fyzee)
27. In the event of infringement of the dress code, punishment is referred in the Hadiths as follows:
"Fudhalah bin Ubaid reported that the Messenger of Allah(s) said.
Three people about whose evil fate you should not feel sorry: a man who disassociates himself from the Muslim Ummah, disobeys his Imam (the ruler of the Muslim Ummah), and dies in that state; a slave who runs away from his master and dies before returning to him; a woman whose husband goes away after having provided her with provisions but she displays her beauty, in tabar- ruj during his absence. So do not be concerned about them.
The jilbab must conceal the underclothes. Such requirement applies to the garment a Muslimah should wear for Salah as well. He said.
There will be, in the latter days of my Ummah, women who will be dressed and yet undressed. (They will be wearing) On their heads (things) resembling camels' humps. Curse them. They are accursed."
Thus, the court concluded that it is mandatory in Islam to cover the face, head and body (by wearing the long sleeved dress). Moreover, according to Islamic scripture, exposing the body is otherwise forbidden. While the court certainly appreciated that Islam contemplated some disagreement with such scripture, it concluded that the proposition of the petitioners was well founded. The observations of the court are as follows:-
28. Thus, the analysis of the Quranic injunctions and the Hadiths would show that it is a farz to cover the head and wear the long sleeved dress except face part and exposing the body otherwise is forbidden (haram). When farz is violated by any action opposite to farz that action becomes forbidden (haram). However, there is a possibility of having different views or opinions for the believers of the Islam based on ijithihad (independent reasoning). This Court is not discarding such views. The possibility of having different propositions is not a ground to deny the freedom, if such propositions have some foundation in the claim. As has been adverted above, the claim of the petitioners is well founded even though, a different view is possible. This Court is only expected to safeguard such freedom based on the Constitution in preference to giving a religious verdict.
While Article. 25(1) of the Constitution guarantees one’s religious freedom, it also makes an exception to such freedom by subjecting it to “public order, morality and health”. Thus, the next question for the court to examine was whether candidates wearing such headscarves and full body veils would offend public order, morality, health.
The court observed as follows:-
“The discussions as above would show that covering the head and wearing a long sleeve dress by women have been treated as an essential part of the Islamic religion. It follows a fortiori, Article 25(1) protects such prescription of the dress code. Then the only question remains is the essential practice as above would offend the public order, morality, and health or is it necessary to regulate such essential practice to give effect to other provisions of Part III of the Constitution…..
The rationale for prescribing dress code by the Board is to avoid malpractices in the examination. The prescription as above is not by invoking an interest of public order or morals of the society. The public order is one which would affect community or public at large. The morality is pertaining to conscience or moral sense of the prescribed standards in the society. The health denotes well-being of a person. The restriction by the Board can be only on any grounds referred as above. In the absence of any conditions referable under Article 25(1), the essential practice cannot be regulated or restrained
……
The right of women to have the choice of dress based on religious injunctions is a fundamental right protected under Article 25(1), when such prescription of dress is an essential part of the religion. As has been noted above, that right can be negated only in any of the circumstances referred under Article 25(1). The attempt of the Board to ensure transparency and credibility of the examinations also cannot be ignored by this Court. However, the approach of the Court is always to harmoniously accommodate the competing interest without there being any conflict or repugnancy. The interest of the Board can be safeguarded by allowing the invigilator to frisk such candidates including by removing scarf. However, safeguard has to be ensured that this must be done honouring the religious sentiments of the candidates. Therefore, women invigilators can be permitted to frisk such candidates…..”
So, the position, unless otherwise overturned, is pretty clear - Hijabs (headscarves) as well as full body veils (burqas) are an essential part of Islam which cannot be curbed.
However, Amna Bent Basheer’s judgement has to be read with that of Fathima Nasneem, pronounced by the Kerala High Court in 2018
Fathima Tasneem & Ors. v The State of Kerala & Ors.; 2018 (5) KHC 906
The facts of this case are similar to Amna Bent Basheer’s case, with the exception of a dress code prescribed by a private educational institution.
The petitioner was a student of Christ Nagar Senior Secondary School, which had adopted a uniform. The petitioners, being Muslim women, wanted to wear headscarves and full body sleeves, instead of the school uniform. The school held that the same would not be in line with the school’s prescribed dress code.
But by virtue of the school being a private entity, the court refused to entertain the petitioner and held as follows:-
“One has the liberty to follow his own notions and convictions in the matter of dress code. At the same time, when such a right is claimed against a private entity which is also having equal Fundamental Right to manage and administer an institution, the Court has to balance the competing Fundamental Rights and decide the issue.”
The court observed that while in Amna Bint Basheer’s case, the right to wear a headscarf and full body veil was held as a fundamental right, the right to establish, manage and administer a private institution was also an equally important fundamental right.
The court further held that fundamental rights were of two kinds:- absolute and relative. Those rights that are absolute are non negotiable and cannot be restrained. However, those rights that are relative must be subject to restrictions placed in the Constitution.Religious rights are relative rights and are not absolute and cannot be allowed to prevail at the cost of the rights of a private institution.
Thus, the court held as follows:-
"Fundamental Rights are either in nature of the absolute right or relative right. Absolute rights are non-negotiable. Relative rights are always subject to the restriction imposed by the Constitution. The religious rights are relative rights (see Art 25 of the Constitution). In the absence of any restriction placed by the State, the Court need not examine the matter in the light of restriction under the Constitution. The Court will, therefore, have to examine the matter on a totally different angle on the conflict between Fundamental Rights available to both. The Court has to examine the prioritization of competing Fundamental Rights in a larger legal principle on which legal system function in the absence of any Constitutional guidance in this regard. The Constitution itself envisage a Society where rights are balanced to subserve the larger interest of the Society.
8. In every human relationship, there evolves an interest. In the competing rights, if not resolved through the legislation, it is a matter for judicial adjudication. The Court, therefore, has to balance those rights to uphold the interest of the dominant rather than the subservient interest. The dominant interest represents the larger interest and the subservient interest represents only individual interest. If the dominant interest is not allowed to prevail, subservient interest would march over the dominant interest resulting in chaos. The dominant interest, in this case, is the management of the institution. If the management is not given free hand to administer and manage the institution that would denude their fundamental right. The Constitutional right is not intended to protect one right by annihilating the rights of others. The Constitution, in fact, intends to assimilate those plural interests within its scheme without any conflict or in priority. However, when there is a priority of interest, individual interest must yield to the larger interest. That is the essence of liberty.”
So to conclude ….
The legal position, as per the Kerala High Court, and more particularly as per Hon’ble Justice A.Muhamed Mustaque J. is amply clear. A government entity cannot bar the religious rights of students, as far as dress code is concerned. However, a private entity can freely do so, as it has sovereignty over the management and administration of its own institution.
The petition filed before the Karnataka High Court is due to be heard today. The Karnataka High Court is in no way bound by Kerala High Court’s judgements. However, they would have persuasive value before the Karnataka High Court.
Considering the legal position and the religious diktats which prescribe the hijab and burqa - what do you think is the morally correct position?
Sources
https://english.varthabharati.in/karavali/udupi-college-hijab-row-student-approaches-karnataka-high-court-with-writ-petition
https://zeenews.india.com/india/karnatakas-udupi-girls-college-not-to-allow-hijab-in-classrooms-2432372.html
https://www.thehindu.com/news/cities/Mangalore/students-come-to-class-wearing-saffron-shawls-in-protest-against-girls-wearing-hijab/article38366959.ece
https://indianexpress.com/article/cities/bangalore/college-hijab-row-tale-of-a-district-divided-7747850/
https://timesofindia.indiatimes.com/city/mangaluru/dismissed-pu-student-protests-seeking-revocation-of-order/articleshow/87345299.cms
https://timesofindia.indiatimes.com/india/6-girls-with-hijab-barred-from-karnataka-college-classroom/articleshow/89288498.cms
https://www.hindustantimes.com/india-news/hijab-controversy-a-political-power-play-ahead-of-karnataka-assembly-polls-101644086304265-amp.html
https://indianexpress.com/article/cities/bangalore/karnataka-chikkamagaluru-college-hijab-ban-7719918/
https://www.hindustantimes.com/india-news/karnataka-hijab-row-escalates-3-more-colleges-deny-students-entry-101644001223147.html
Very well explained!