Thursday, February 17, 2022

'Hijab' and the Law


The recent expulsion of a number of ‘Hijab’-wearing, young Muslim students in Karnataka, and the subsequent imposition of a ‘ban’ on religious attire in academic institutions raise disturbing questions about Executive excesses, given their profound implications on the future of individual choice, religious freedom, and minority rights in India. Given the fact that multiple religious symbols  and attires are accepted and accommodated as part of the nation’s secular ethos and composite culture, and most Muslim girl children had been wearing headscarves along with their School uniforms for many decades all across the country without any issue, the present manufactured controversy against ‘Hijab’ in coastal Karnataka can only be seen as a manifestation of the tectonic shifts that are currently underway in Indian politics, especially the growing muzzle-flexing by Islamophobic extremists in the country who enjoy impunity from law despite their vitriolic campaigns for the erasure of all markers of Muslim-cultural identity from the public sphere of India as well as threatening to commit mass atrocities against the minority community. Hence, attacking a religious and cultural practice like ‘Hijab’ in the name of ‘uniformity’ in the class-room dress code is only the latest episode in the larger political project of remaking India into a ‘Hindu Rashtra’. 



Constitutional Secularism in India


As a large country with over a billion- people: professing different faiths and belonging to diverging denominational groups; a variety of regional traditions and food cultures; indigenous communities; speaking several languages; India cannot but remain as a shining example of unity in diversity. It is this spirit of tolerance, accommodation and inclusion that is the hallmark of the Indian nationhood as envisaged and consciously chosen by the founding fathers of the Constitutional order when India regained independence from British colonialism in 1947. Respecting the dignity of the individual, and accommodating cultural differences by express recognition of minority rights; evolving the bond of fraternity across all category distinctions and constructing a public order where every social group finds equal access to flourish in togetherness is the idea of India that emerges from that founding document of the secular republic.

 

It is this Constitutional vision of India as a secular nation that is increasingly under threat from ‘Hindutva’ political mobilizations that seek to create a Hindu State in its place: a country where little or no ‘space’ will be allotted to religious minorities, and, according to the founding ideologues of ‘Hindutva’, the Muslims will be treated as second-class citizens. As the Hindutva brigades openly acknowledge, their men have ‘infiltrated’ almost every State institution in the land and they enjoy brutal majority in Parliament and they are the ‘government’ in Centre and in a majority of States: indeed, the ‘fringe’ has become the ‘mainstream’ in India today- virtually managing to effect a ‘Constitutional Coup’ in the country through the capture of institutions. The impunity enjoyed by those who destroyed a four century-old Mosque in Ayodhya in broad day-light in 1992, as well as the Supreme Court judgement awarding the Mosque to the Hindus show the limits of justice and secularism in India today.    

 

The ‘Hindutva’ Challenge


As India is a Constitutionally-declared secular democracy and the world’s gaze is upon the nation’s top leader Narendra Modi who came to office with a dreadful record of presiding over the country’s worst anti-Muslim pogrom since independence, the project of remaking the nation as a majoritarian ethnic democracy is sought to be advanced by the party in power and its ideological followers through ‘stealth’ and ‘subterfuge’ on different fronts. Hence, it is instructive to note that in seeking to achieve their chosen political objectives, the Hindutva brigade has long weaponised the secular language of the Constitution and the legal system as well. 


Among the technologies of governance on full display now include the following: promoting a mythical uniformity by destroying the autonomous identity of the only Muslim-majority State in the Constitutional order; enacting controversial legislations that criminalize the freedom to propagate and embrace a religion of one’s choice; that discriminate among refugee claimants on the basis of religious identity; unleashing the ‘legal process’ as a ‘punishment’ on those who differ with the regime; stifling free speech by criminalizing dissent in the country; infiltrating and capturing all State institutions as well as the media- including social media networks with an ‘own’ army of ‘trolls’-  to ‘control’ and ‘direct’ the flow of  public discourse in favour of the Supreme Leader, etc.

 

While the political project of remaking “New India” as a majoritarian Hindu State is on full swing in the country, what is surprising in the process is the virtual abdication of its Constitutional responsibility by the higher judiciary to clarify searing normative questions. It is widely observed in recent times that on several issues involving executive excesses, the judiciary has come to adopt evasive balancing as a strategy to ‘bail out’ the government of the day from abiding by its manifest legal obligations, often hiding behind ‘national security’, ‘sealed-cover jurisprudence’ and ‘extraordinary situation’, etc. Since many of these issues have profound implications for the federal system of institutional balancing as well as the civil liberties of the citizens, the dilution of Constitutional values by the very institutions meant to safeguard those values is a source of disquiet and grave concern for the future of our Republic.

 

‘Hijab’ as a Human Right

 

If we go by the textual language, the fundamental rights of citizens enshrined in the Constitution of India include the right to life and personal liberty. Likewise, freedom of speech and expression is also a basic right. The right to personal freedoms has meaning only when it recognizes a life of dignity and personal integrity of the individual where her personal appearance and free expression is secured. A perusal of interpretative jurisprudence rendered by the judiciary in India over the last 70 years would reveal to everyone the capacious nature of these rights under the Constitution.  


Likewise, under Article 25 (1) of the Constitution of India, “all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion”. The freedom of religion is subject only to State regulations that may be prescribed to protect “public order, morality and health” or to restrict any “secular activity which may be associated with religious practice”. Interpreting the meaning and scope of the freedom of religion, India’s Supreme Court has time and again made it clear that ‘essential religious practices’ of a community of a people cannot be interfered with. In previous cases, both the Kerala High Court and the Madras High Court, like the Malaysian Supreme Court in 1994, have also agreed that wearing of ‘Hijab’ is an essential religious practice in Islam worthy of protection under law.  

 

It is also instructive to note that as a State Party to the 1966 International Covenant on Civil and Political Rights (ICCPR) and other international human rights instruments, India is also duty bound to respect its international legal obligations on freedom of religion. 


According to ICCPR, the right to manifest one’s religion or belief is required to be recognized by the States for all persons. Art. 18 (1): "Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom [...] either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.’ Moreover, Art. 18 (3) clarifies: "Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others."

 

According to the Human Rights Committee, the ‘freedom to religion or belief in worship, observance, practice and teaching’ encompass a broad range of acts. The authoritative General Comment issued by the HRC states: ‘The observance and practice of religion or belief may include not only ceremonial acts but also such customs as the observance of dietary regulations, the wearing of distinctive clothing or head coverings, participation in rituals associated with certain stages of life, and the use of a particular language, customarily spoken by a group.’  

 

In Lieu of Conclusion

 

The struggle for their right to wear ‘Hijab’ along with their uniforms by the young Muslim students in Karnataka represents a testing moment for the nation’s multicultural framework. Unleashing intimidatory campaigns on the public street- what Stanford-sociologist Thomas Blom Hansen recently called in his book “the law of force”, Hindutva groups and their sympathizers have sought to humiliate the students and teachers of an entire community by denying them their right to head covering. And by weaponizing the language of secularism [“uniforms in class room”], they attack and seek to erase cultural ‘difference’ of a religious minority [the right to wear a ‘Hijab’ along with uniform]. Given the clear right-wing shift in Indian politics in recent years as evidenced by the rise and rise of aggressive ‘Hindutva’ and the subsequent ‘evasive balancing’ by the courts on Constitutional guarantees on personal liberties, can we expect that justice will prevail, and that the right to freedoms will be upheld? Nothing is certain in the Indian political and judicial landscape today, and God knows Best.