16 März 2022

The Hijab Ban in India has nothing to do with Secularism

In February 2022, educational institutions in the town of Udupi (in Karnataka, India) decided to ban the wearing of Hijabs by Muslim students in a college. This ban is unconstitutional. It is not in line with the principle of secularism and also violates the right to education.

The Hijab ban in Karanataka

The ban in Karnataka was based on Section 133(2) of the Karanataka Education Act. Under the Indian Constitution, individual states have the right to make their own education policy. After several protests against the Hijab ban, there were counter-protests by Hindu students turning up in saffron scarves to support the Hijab ban. Following the High Court’s orders, the state then banned the wearing of any religious coverings (including saffron shawls and Hijabs). The High Court was criticized for not providing interim relief to the petitioners, forcing them to approach the Supreme Court if they sought further relief. Considering how long the Supreme Court takes, particularly for decisions on religious matters with political undertones, it could take a while before the petitioners can get the required relief. On Tuesday the 15th of March, the Karnataka High Court officially dismissed the petition filed against the ban, which is causing widespread discontent with this unfair and unconstitutional move by the Court.

In itself, this could have been seen as a secular move but several arguments indicate otherwise. Firstly, the ban started with the restraining order on wearing a Hijab and not ‘all religious coverings’ – the latter came later, after the outrage against the disproportionate restriction on Muslim students. Secondly, in an atmosphere of growing islamophobia and hate crimes against the Muslim community, such a move compounds a growing feeling of alienation and othering. In any case, the means by which this ‘secularism’ seeks to be achieved does not justify the ends.

A context of growing islamophobia

The Hijab ban comes at a time where the Muslim community in India has increasingly been under target, facing hostility and othering. Many scholars and activists have criticized the growing islamophobia under the current government in power, evidenced by continuous verbal and physical attacks on Muslims. While this is not new, there has been a steady rise in hate crimes against Muslims since the coming into power of the Modi government, including the horrific pogrom in Delhi after the nationwide protests against the Citizenship Amendment Act (CAA). There have been open calls for genocide, where hyper-religious Hindu groups have openly talked about eliminating Muslims. This is just one example of the forms of hate speech that has become normalized in India against the Muslim community. In addition, Muslim women are under constant scrutiny, often pressuring them as a community to justify their religious practices. Recently, the attacks against Muslim women reached a new low: they were auctioned for sale on a website by a right-wing Hindu sympathizer. The Hijab ban also reflects a saviour complex that the State has towards Muslim women, attributing and assuming the presence of patriarchal pressure in their lives. All these are factors that need to be taken into account by the Courts when examining the intention of the ban and deciding whether it is constitutional. 

Secularism and religious freedom in India

The term secularism was inserted in the Preamble to the Indian Constitution by the 42nd Amendment in 1976. In the famous Kesavananda Bharati ruling, the Court also held that secularism was part of the Basic Structure of the Constitution, which was reiterated in the SR Bommai case. Secularism is expressed in the Constitution in different ways. Whether it is the prevention of discrimination, as in Article 15, which prohibits discrimination on the basis of religion, race, caste, sex, place of birth. Or the explicit right to practice the religion of one’s choice and the more specific rights related to the practice of religion (such as the right to set up educational institutions for that purpose) enshrined in Articles 25-28 of the Indian Constitution. Much litigation around religion and religious freedom in India revolves around the question whether certain religious customs and traditions violate the equality clause of the Indian Constitution.

The principle of ’essential religious practice’ and why it is problematic

The Supreme Court has developed the doctrine of ‘essential religious practice’ over time in religious disputes and stated that it is up to the Court to define what constitutes an essential religious practice. This in itself is questionable. Arguably, when there are several religions with different practices and values in a democracy and there is a conflict over how individuals should practice their religion, a neutral institution is needed to perform the task of adjudicating on this. It is, however, open to debate whether the Supreme Court is actually neutral and qualified in such a case. Interestingly, in Ahmedabad St. Xaviers College Society v. State of Gujarat the Supreme Court observed that it could not itself make coherent statements or interpret what freedom of religion meant, which is perhaps one of the more explicit expressions of the Court in its scepticism about adressing the issue of religion.

The Advocate General who argued on behalf of the State in the High Court of Karnataka (in favour of the ban) said that the Hijab was not an essential religious practice, which justified the ban. This argument is problematic coming from a male lawyer without quoting reliable sources and without engaging with the opinions of feminist Muslim women on the issue. Several Muslim women have spoken up and commented that wearing the Hijab is an integral part of their faith. The Supreme Court, when developing the doctrine of essential religious practice, has also stated that ‘in order for the practices in question to be treated as a part of religion they must be regarded by the said religion as its essential and integral part‘. This implies the right of the religious community to determine what constitutes an essential religious practice, again raising the question of whether the Court or a legal argument by a lawyer can override that practice.

The State also argued that the Hijab does not fall under religious freedom but under freedom of expression, which is subject to institutional restraints. The reason given was that because wearing a Hijab is an ‘option’, it is not obligatory and therefore not ‘essential’, which takes it out of the area of ‘essential religious practice’. Regardless of whether this wordplay was intended to make a legal point (which it fails to do), it makes an assumption by interpreting the tenets of Islam in a very specific manner for the sake of the argument. Finally, it is important to acknowledge that the question is not just of whether the Hijab is an essential religious practice but why it is being subject to so much moral and legal scrutiny, in effect restricting the participation of many Muslim women in educational institutions.

The Hijab ban violates other essential rights and freedoms

By banning the Hijab, the State has infringed Article 21-A of the Constitution, which guarantees free and compulsory education to all. The court cannot view this ban separated from its context. It has to include the surrounding political circumstances and balance them against the right to education. Since Indian Courts have decided to engage with interpreting religious issues and adjudicating religious disputes like any other important legal matter, they also need to consider the context (economic, social and political) behind it so that justice is not just pretended to be done. Particularly in the Hijab ban case, the courts must be aware that literacy rates among Muslim women are disproportionately high and ask whether this ban would discourage them from attending educational institutions. The language of the High Court was also problematic, as it indirectly implied that wearing the Hijab would be a disturbance of peace and tranquility in the schools and universities. Such statements by courts also undermine the faith of minority communities in these institutions to protect their rights against arbitrary state action.

The comparative picture from the EU and the requirement of reasons

Another argument made by the petitioners before the High Court against the Hijab-ban compared the experience of secularism in other countries with those of India. It was argued that unlike Turkey which has ‘negative’ secularism, India’s understanding of secularism is supposed to be positive. This means that in India, there is an explicit freedom to practice and propagate a religion of one’s choice (provided that it does not harm public order and morality). Scholars have also engaged with the Hijab ban from a comparative point of view, stating that India cannot defend the ban on the basis of secularism the way, for example, France has. This is because unlike France, the ban currently in question started with the Hijab exclusively, which is a covering worn by the members of the Muslim community only. In France, all religious symbols are banned – and there is a clear separation of religion and state. Even then, there are still criticisms of singling out the veiling of Muslim women and the treatment of Muslim communities in French society. This criticism applies to India currently as well: even if the High Court in its interim order had banned the wearing and display of all religious symbols: these orders will become a tool in the hand of the state (and possibly other states and institutions in India) to follow suit. Currently, the Hijab is ‚only’ banned in the state of Karnataka: however, in the context of growing Islamophobia and the upholding of the ban, this danger persists and will encourage Islamophobia in the cloak of legality and secularism. This is why this discriminatory, arbitrary and unconstitutional restriction on Muslim female students needs to be nipped at the bud. As mentioned earlier, context and the political scenario unfolding in India cannot be absent from our discussions, whether in activist, legal or academic circles, when engaging with the issue of this ban.

Does such a ban achieve secularism?

The situation brings up many questions that need to be discussed. Should there be a blanket ban on religious symbols? What are the factors to be kept in mind when deciding religious disputes? Are courts the right institutions to adjudicate on these matters and make decisions affecting the rights of entire communities, especially minorities? While secularism is the cornerstone on which the Hijab ban has been defended in several cases, it is worth debating whether it advances secularism at all. One might wonder if a ban on religious symbols is a way to justify a discriminatory practice against one religion in particular. In the current scenario in India, this ban is increasingly causing religious tensions and skepticism in minority communities about the respect and inclusion shown to them in a supposedly secular democracy.

Finally, this ban cannot be seen without context: Muslim women have often become the center of communal debate and controversy in India and this incident is further proof of that. In such a situation, it is perhaps time to re-think the way courts have been adjudicating on religious matters and how and where such state action needs to be debated and reconciled in a secular democracy.

SUGGESTED CITATION  Srivastava, Medha: The Hijab Ban in India has nothing to do with Secularism, VerfBlog, 2022/3/16, https://verfassungsblog.de/the-hijab-ban-in-india-has-nothing-to-do-with-secularism/, DOI: 10.17176/20220317-001240-0.

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