Tuesday, June 28th, 2022 02:11:27

Uncalled for Issue

By Nilabh Krishna
Updated: March 7, 2022 9:23 am

In a recent turn of events, a group of Muslim girl students, covered with headscarves, were restricted to enter their classrooms in Karnataka’s Udupi, citing the college’s ascribed dress code as the rule. While six of them staged protests against the ban dependent on hijab, another section of students, allegedly instigated by far right-wing groups, took to the streets while donning saffron scarves. They replicated the act of practising religious elements at schools with kesari scarves and argued they should be allowed to do so as Muslim female students in a burqa. Condemning the clash, competent authorities and ministers have said that educational institutions are not the place to propagate one’s religion, especially in a college where a uniform dress code is provided for. A group of Muslim girls have filed a petition before the Karnataka High Court and the matter at hand is currently sub judice.

It is important to note that under secular principles of the Indian Constitution, any individual is allowed to practice, profess, preach and propagate any religion. However, one is disallowed to propagate their religion at any educational institution. While private schools are permitted to offer religious instructions, government-run schools are non-religious as that of the State. The current scenario playing out in Karnataka is in direct violation of the principle of inclusivity envisioned by the dear Prime Minister of India. The landslide victory of the Prime Minister Narendra Modi led Bharatiya Janata Party (BJP) in India’s last parliamentary elections led many to believe that Muslims would be further relegated to the margins of Indian society.

However, within days of his re-election, Prime Minister Modi sought to allay these concerns by publicly calling for a strong and inclusive India. Modi exhorted party members and his fellow parliamentarians to regain the trust of the country’s minorities, including Muslims through “ Sabka Sath, Sabka Vikas, Sabka Vishwas”. Bowing his head in front of the country’s constitution, the Prime Minister also urged country’s Muslims to refute the myth

that their fear had been aided

and abetted by vote-bank politics. While Modi’s pronouncement

could be taken positively, the bitter reality is that whatever is done by the Prime Minister, it is taken with a pinch of salt.

The protection of minorities, particularly Muslims, is important to the concept of inclusion. Importantly, Modi’s promise of a more inclusive India will not be realised unless his words are matched by deeds. To be honest, Modi’s overtures to Shia (mostly Bohra) and Sufi Muslims were well accepted by elements of India’s diverse Muslim community during his first term in office. Modi’s outreach efforts to these two faiths included a keynote presentation at the 2016 World Islamic Sufi Conference in Delhi and a visit to a Dawoodi Bohra mosque in Indore in 2018, when he met community leaders during a commemoration of Prophet Muhammad’s grandson’s sacrifice known as Ashara. Minority Muslim communities (Shias and Sufis) benefit from the ruling party’s political connection as well, as it gives them a higher social standing against mainstream Sunni forces. Despite all these overtures, every now and then, unnecessary issues like Hijab controversy crop up in various parts of the country. This not only gives bad name to the country, but also derails the inclusive agenda of the Prime Minister.

Constitutional Dillema

In spirit, India’s Constitution prohibits all forms of extremism. It stipulates that the right to education, the right to equality, and the right to religion coexist, with none of them having precedence over the others. The current duality in the Karnataka hijab debate is between a patriarchal tradition and an individual’s right to religious freedom, as well as the rights to education, life, and liberty.

While the present hijab debate may appear to be a one-off or isolated incident, there have been other such incidents developing, not only in Karnataka but also in other southern states. A Tamil Nadu government Christian school sparked outrage by forbidding Hindu girls from wearing bindis, bangles, or flowers in their hair at school. This bolstered the Hindus’ demand that “why should just Hindus be secular when Muslims and Christians can remain traditional?” This was followed by another occurrence in which some kids in a school would miss Friday afternoon classes because they were required to offer namaz. The school’s progressive headmistress may have reasoned that since Hindu kids may perform Saraswati Vandana in the classroom, Muslims can perform namaz there as well. As a result, in order to save the kids’ time, the Principal offered them a classroom. While the pupils were unconcerned, an investigation was conducted, and the Principal was eventually suspended.

Avani Bansal, writes at Bar and Bench.com “Through a catena of judgments, we also know that the Supreme Court, as long back as in the landmark case of the Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sr Shirur Mutt, has laid down the test of ‘Essential Religious Practice’, which affords constitutional protection to the core principles of every religion, without interference from the State. This test provides that not everything done in the name of a religion or cultural practices associated with that religion are protected all the time, but those which are essential to that religion alone need to be protected. Of course, by the admission of the judges of the Supreme Court themselves, this is no easy task, as one can imagine the complications in deciphering what these ‘Essential Religious Practices’ mean. It requires judges to pore over religious texts and decide as if they are experts on these religious matters.

This question of how the Essential Religious Practices test will be applied in the setting of educational institutions, and particularly on hijab, has to be seen in the light of three judgments of Kerala High Court – Nadha Raheem v. CBSE (2015), Amnah Bint Basheer v. CBSE (2016) and Fathima Thasneem v. State Of Kerala (2018), where the question broadly revolved around the students’ right to dress and the practice of wearing hijab. While in Nadha Raheem, the Court upheld the right of Muslim girls to wear hijab, it also made it clear that the administration can examine the faces and identities of the students. In Amnah, the Court specifically held that the right to wear hijab is an Essential Religious Practice, but in Fathima, the Court held that in a private institution, the students cannot insist on specific dress code.”

This issue in India is not unique; similar debates have occurred in Europe and America. The Fourteenth Amendment of the United States Constitution, as well as the Religious Freedom Restoration Act (RFRA), provides protection to Muslim women who wear the hijab, ensuring that they are not discriminated against. Perhaps it is time for India to enact similar legislation.

Despite the fact that the case’s trajectory is unclear, the bottom conclusion is that no one should be barred from attending educational institutions because of their wardrobe choices. It’s a question of freedom of expression as well as the right to education. No religious practise or government can stand in the way of it. A person’s decision to follow a certain faith is a personal one that should be kept secret.Despite overwhelming arguments against the hijab or purdah’s rigid patriarchal nature, it is nevertheless protected under the person’s fundamental rights.The viewpoint of an outsider cannot be used to criticise one’s religion practise. It cannot be the state’s position to arbitrarily prohibit any such practise. Rather, following the Indian philosophy of positive secularism, it is the state’s responsibility to maintain not only religious neutrality but also to assist religions in flourishing.

 

By Nilabh Krishna

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