The simple need is to hold sympathy and empathy with the Constitutional individual right to personal dignity that is at the very core of the Preamble of the Constitution of India.
Essentially flawed. That is how a leading national newspaper headquartered in the South editorialised the Karnataka High Court judgement. On the dot! While there are several legal points that are already being raised in a Special Leave Petition now awaiting listing before the Supreme Court in order to challenge the High Court judgement, one cannot help but query the very lens with which the High Court has examined the matter.
Deliberating daily for 11 days, a full bench led by the Chief Justice—in recognition of the serious turn the protests were taking after the single bench’s interim order and the GO issued on the hijab-ban caused schools/colleges closure, police marches and a deepening public order crisis that I described in my earlier article in this newspaper as one rapidly growing into a “national migraine”—the Karnataka High Court did not look to see how it could quickly defuse the situation. Instead, it proceeded to frame for itself an esoteric enquiry into deeper theological, constitutional (and administrative) issues; then, even as much of Karnataka (and elsewhere) simmered, took three weeks to write a 129-page long judgement replete with learned quotations from sources whose authority/authenticity is also being questioned. Furthermore, while it acknowledged with its opening quote the complexity created by the intersection of religion and culture over time making the hijab deeply symbolic with different interpretations for users, non-users and observers, it went on to more or less ignore the cultural dimension; equally, the matter of individual conscience so critical to a human being, beyond organised religious practices.
In the four basic questions the Bench framed for itself to consider, it did not in its wisdom find it necessary to ask, first and foremost, what could be done immediately to reconcile the right to education of a particularly vulnerable segment of society with its demand to remain consistent with its own beliefs and way of life and so ensure that the young Muslim girl/adult at the bottom-most rung of the educational ladder is not denied her human right to develop her full potential. Had this been done, much needless—and spreading—controversy could have been avoided.
With all due respect to the Honourable Court it has to be said that it has sadly eschewed the path of rapprochement in the State’s societal conflict. There was—and still is—a readily available via media for which the young girls plead—to simply order the hijab, if worn, to be of the same cloth and colour as the uniform, thus guaranteeing adherence to discipline while yet maintaining the comfort level of those young women wanting to wear an additional piece of clothing—or just to wear the mandated dupatta in a different way—enabling them to continue undeterred with their studies without personal and familial upheaval.
This course the High Court virtually dismissed out of hand, calling the evidence before it of any habitual or prior hijab-use weak, nor did it further probe this aspect. Instead, it concentrated attention on reinforcing discipline with sledge-hammer force, asserting uniformity through uniforms identical in every detail as the only secular ideal. Begging forgiveness ahead for saying so, but the Court has missed the woods for the trees. Excruciating over whether the hijab is indeed essential Islamic religious practice and whether school uniform/dress code violate constitutional fundamental individual rights and whether the state and educational authorities have the power to prescribe—and therefore also proscribe—uniform dress-code under the Karnataka Education Act 1983 and its subsequent Rules—the latter described “as clear as Gangetic waters”—has only resulted in dense circular arguments. In the event, these are somewhat muddled and muddied as the Gangetic waters actually are.
The horrible scenes of hijab-disinvestment at educational campuses have had critics recalling Draupadi’s vastraharan or disrobing. Not as fanciful an exaggeration as it sounds. I recall my experience in 1992 when in the wake of the 6 December disturbances I joined a citizen fact-finding mission and communal harmony effort in the riot-torn Seelampur area of Delhi. A persistent story that was then doing the rounds, flaring ever-more resentment in each retelling, was that of a Muslim girl stripped naked by a bunch of thugs. As an investigative journalist I refused to take this into account in our report unless and until I had met with the girl thus traumatized. To cut a long story short, after much persistence and chasing the contact who had heard from another contact who had heard from another …I did finally trace the girl. What I discovered was that while the girl had not been stripped naked, she was no less traumatized by what had indeed happened: her dupatta, habitually draped over her head and bosom, had been roughly snatched away by a group of thugs leaving her standing chest “bared” in public. There was no doubting that the girl was truly devastated. She wept copiously as she was coaxed into narrating the event between uncontrolled sobs, she confided: “Mein nanga hogayi. Mere uppar odni nahin chodhi. Khule aam mein apni laaj sambhal ke rakhne se mujhe lajjit kar diya. (I was stripped naked. They took the dupatta that has always covered me, leaving me standing helpless and shameless in the open public.)”
The simple need is to hold sympathy and empathy with the Constitutional individual right to personal dignity that is at the very core of the Preamble of the Constitution of India. Undoubtedly, this Constitutional right is circumscribed if in conflict with community rights and liable to “reasonable restriction” if it threatens public order, morality or health. But it can be no one’s argument that an additional piece of clothing or an alternative mode of draping results in obscenity or that it affects public order or health, the clauses that invoke “reasonable restriction”. Rather it is, if anything, over-protective of modesty and hygiene—letting a girl feel sheltered from licentious gaze, keeping loose hair out of eyes and away from lice-infection so common in crowded schools.
Equally, if public order is disrupted because of this issue, as it has been in Udupi and elsewhere, the thrust has to be on penalizing the goons that break the peace by jeering and threatening the girls, rather than on those choosing to discreetly cover themselves. Not to do so is tantamount to re-victimizing the victim, a battle that has been long fought and more recently won, recognising that the raped/molested girl does not ask for it, but the rapist/molester must be penalised for not knowing behavioral-boundaries.
And how can the State claim the right to speak on behalf of Muslim girls’ autonomy, denying individuals the right to speak for themselves?
Many of us, including many progressive Muslim women, do look askance at the wearing of the hijab. But we must remember coerced autonomy does not empower, rather it builds resistance. The past experience of many Muslim states such as Iran, Iraq, Turkey, Syria should teach us that in the long-run coerced autonomy only gets rejected and further leads to intense radicalisation that even turns earlier negatively-perceived-customs into desirable identity statements. If only the Karnataka High Court had taken as much pain to look at the doctrines of “proportionality” and of “reasonable accommodation” as it did in arguing for ‘reasonable restriction’ it perhaps would have arrived at different, better conclusions.
The Supreme Court was expected to take up the issue immediately after the Holi vacation. But this has not happened till the time of writing. The matter is still being procedurally examined for fixing the listing date. Now there is even speculation that the hijab-case could get tied together with the Sabarimala entry question that has been with the SC for over two years now and taken up together. The innocuous female head-scarf has turned into a touchstone for determining some of the weightiest questions in Indian jurisprudence: what constitutes “essential religious practices”, what exactly are constitutional individual fundamental rights, matters with extremely wide-flung implications when the Apex court pronounces on them. And inevitably ruling on core concepts will take time to decide.
Yet with all its wisdom the Supreme Court will find no easy answers. In these volatile fluid times, porous to global influences, both Islamic religiosity and secularism have hardened edges that do not meld with the grace of the Ganga-Jumna tabeez that once was India’s distinctive characteristic.
The problems have compounded and bring a no-win situation before the Supreme Court to rule upon complex theological and cultural practices in a country of unique diversity.
Whichever direction the SC takes it can leave one segment or the other feeling dissatisfied/dishonoured. A Pandora’s box of troubles lies ahead unless the Apex Court is able to find some magical healing formula.
Meanwhile, one of the most vulnerable segments within the education system that is vital for the nation to reach—the Muslim girl/young adult—is already heavy collateral damage in the virulently-politicised atmosphere. According to one report more than 400 girls are already missing classes, while over 180 are missing examinations, a staggering 12.5% of the total Muslim girls in pre-University colleges in Udupi. This is only the tip of the iceberg for there are worse figures from some other places in the district with a solitary Muslim girl from amongst 56 in a PUC in Kundapur and 1 0f 16 girls in Baindur taking the examination. Some boys are also reported to be absenting in solidarity. Many girls are transferring to other places without strict uniform requirement, thus losing access to better education facilities.
Now, if only the Apex Court would use the Gandhian talisman of the impact of any action on the “last person” and give an immediate Interim Order that restores the status quo ante to the time before the girls were denied entry into classrooms could some hope renew: that fragile buds will not wither on the stem before being allowed to bloom.
As this goes to press, news of the Supreme Court’s refusal to consider the matter with any urgency totally belies any such hope.
Rami Chhabra is a media veteran, who pioneered the first feminist columns in the national press. She has served the country in various capacities, including in GoI and as Member, National Population Commission.