The controversy is between ‘Choice’ and ‘Rule’. ‘Choice’ represents freedom, dignity, diversity. ‘Rule’ is often a product of majoritarianism, drive for uniformity. ‘Choice’ will yield to ‘Rule’ in certain situations — public order, decency, morality and health... Absent such grounds, ‘Choice’ must prevail
by P. Chidambaram
The Hijab: To wear, or not to wear, that is the question.
The question was answered by two Honourable Judges of the Supreme Court but, at the end of the day on October 13, there were two Opinions, but no Answer. As a result, Ms Aishat Shifa and Ms Tehrina Begum, born and raised in a small town called Kundapura, district Udupi, Karanataka, are unable to resume their studies in Government Pre-University College, Kundapura.
Both students were in the second year. Since the day they had joined the college in the previous year, they had worn the hijab — a scarf that covered the head and neck but left the face visible. The hijab was worn in addition to the prescribed uniform.
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| An Algerian women wearing a Hijab [ Photo: Mouaadh Tobok/ Unsplash] |
On February 3, 2022, they were stopped at the gate and told that they would have to remove the hijab before entering the college. They refused, they were denied entry, and that is where the matter stands eight months later.
Hijab is no different
A woman wearing the hijab causes no offence to anybody. It is not against public order, decency, morality or health. Irrespective of the religious significance, a woman wearing the hijab is not very different from women in India who cover their head with the pallu of their sari or a duppatta. Men wear turbans. Sikh men cover their heads with a pagari. Many states of India have distinctive headgear worn on special occasions (e.g. the Mysuru peta).
What is the central issue of the controversy? Amidst the screaming headlines, the cacophony on television, the flood of comments, trolls and memes in the social media and the lofty pronouncements of worthy leaders, the central issue has been lost. In my view, the issue boils down to one word: CHOICE.
Fascinating Fencing
There are two approaches to the question of ‘choice’ concerning wearing of the hijab. I may illustrate the two approaches by quoting from the opinions of the two honourable judges, Justice Hemant Gupta and Justice Sudhanshu Dhulia:
Justice Gupta: “The practice of wearing of hijab may be a ‘religious practice’ or an ‘essential religious practice’ or it may be social conduct for the women of Islamic faith…The religious belief cannot be carried to a secular school maintained out of state funds.”
Justice Dhulia: “Whether wearing hijab is an essential religious practice or not is not essential for the determination of this dispute. If the belief is sincere, and it harms no one else, there can be no justifiable reasons for banning hijab in a classroom.”
Justice Gupta: “… the decision of the state government mandating the College Development Committee to ensure the students wear the uniform as prescribed does not violate the freedom guaranteed under Article 19(1)(a), rather reinforces the right to equality under Article 14.”
Justice Dhulia: “Asking a pre-university schoolgirl to take off her hijab at her school gate is an invasion of her privacy and dignity. It is clearly violative of the Fundamental Right given to her under Articles 19(1)(a) and 21 of the Constitution.”
Justice Gupta: “Therefore, the Preambular goal of justice, liberty, equality or fraternity would be better served by removing any religious differences, inequalities, and treating students alike before they attain the age of adulthood.”
Justice Dhulia: “This is the time to foster in them sensitivity, empathy and understanding towards different religions, languages and cultures. This is the time when they should learn not to be alarmed by our diversity but to rejoice and celebrate this diversity.”
Justice Gupta: “If they choose not to attend classes due to the uniform that has been prescribed, it is a voluntary act of such students and cannot be said to be in violation of Article 29 by the state.”
Justice Dhulia: “If she wants to wear hijab even inside her classroom, she cannot be stopped, if it is worn as a matter of her choice, as it may be the only way her conservative family will permit her to go to school, and in those cases, her hijab is her ticket to education.”
Choice or Rule
Some commentators have complained that when there is a movement for shedding the hijab in conservative Iran, it is surprising that a section of the Muslim community should defend the right of girls to wear the hijab in classrooms in modern India. The criticism is completely misplaced. On a closer look, the controversy is the same in both Iran and India: it is about ‘choice’. It is like the controversy in America over the woman’s choice of abortion.
The controversy is between ‘Choice’ and ‘Rule’. ‘Choice’ represents freedom, dignity, privacy and diversity. ‘Rule’ is often a product of majoritarianism, intolerance and drive for uniformity.
‘Choice’ will yield to ‘Rule’ in certain situations that attract the grounds contained in Article 19(2) or Article 25(1) of the Constitution — public order, decency, morality and health — and in certain other provisions of Part III of the Constitution (fundamental rights). Absent such grounds, ‘Choice’ must prevail.
Justice Sudhanshu Dhulia upheld ‘Choice’ because the hijab may be the girls’ only ticket to education. Justice Hemant Gupta upheld the ‘Rule’ although the state showed no compelling necessity.
Let the larger Bench of the Supreme Court lay down the law. Meanwhile, each one of you must decide whether you stand with ‘Choice’ or ‘Rule’.
P. Chidambaram served as the former Member of Parliament and Union Minister under Manmohan Singh's government. He served as the MP of Sivaganga for seven terms. He also served as finance minister following the departure of Pranab Mukherjee from the post. He was a stalwart member of INC until he quit the Congress party in 1996 and joined a breakaway faction of the Tamil Nadu state unit of the Congress party called the Tamil Maanila Congress (TMC).
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