The Hijab: A Veil of Ignorance, a Breach of Uniformity, or a Constitutional Right?

“To be or not to be.”

Much like Hamlet in Shakespeare’s timeless play of love and loss, who was faced with a life-changing dilemma where he contemplated his right to choose whether to live or not, multitudes of Muslim women across the globe find themselves contemplating their rights on whether to veil themselves or not. The most unfortunate thing about their circumstances is that, unlike Hamlet, their liberty to choose is not their own but primarily governed by the stalwarts of either law or religion. 

In contemporary international geopolitics, Iranian women are undergoing a period of turmoil and uncertainty concerning their choice of wearing a Hijab, which is primarily a headscarf, under the Taliban Rule, which isn’t mandated by their law, where those choosing against the same are being faced with violent backlashes. The plight of Iranian women particularly surfaced with the tragic demise of Mahsa Amini, who was detained by Iran’s “morality” police due to her attire, subjected to police brutality, causing coma and subsequent fatal heart failure. A young woman perishing at the hands of a cruel state for revealing a few strands of hair has left the global
conscience dumbfounded, especially in the face of an equally dynamic agitation by schoolgirls in Karnataka to be able to wear Hijab to school.

These distinct scenarios unfolding in disparate corners of the world, both revolving around the very same piece of cloth, offer us a glimpse into the intricate interplay between gender, law and religion. While one wants the right to wear the Hijab, the other fights for their right against it, which brings us to the dilemma of whether this debate is truly about religious practices and morality or the right to choose whether or not to practise one’s beliefs without the fear of reprimand or ostracisation.

A Saga of Strife for Constitutional Protection of Hijab in India

In early February 2022, a conflict arose in Udupi, Karnataka, over school uniforms. Muslim female students were denied entry for wearing Hijabs, as it violated the uniform policy, which also affected students of other religions. The situation escalated with protests from both Muslim and Hindu student groups, demanding the right to wear Hijabs and saffron scarves, respectively and the Karnataka government subsequently issued an order stating that uniforms must be worn compulsorily, with no exception for wearing Hijabs. This directive was subsequently used by several educational institutions to deny entry to Muslim girls wearing Hijabs.

The disgruntled students took the issue to court under the case Resham v. State of Karnataka, asserting a violation of their fundamental rights under Articles 14 (the Right to Equality), 19(1)(a) (Right to Freedom of Speech and Expression), and 25(1) (Freedom of Conscience and Profession, Practice and Propagation of Religion) of the Indian Constitution. The petitioners further contended that the government lacks the authority to impose uniform requirements on moral grounds. The primary question confronting the court was whether the Hijab is eligible for protection under Article 25 as an essential religious practice under Islam.

The Karnataka High Court upheld the Hijab limitations and prohibited religious wear within educational institutions. The court noted in Hussain Said v Bharat Education Society that the Holy Quran does not impose that Muslim women don a Hijab or other head covering and provides it only as a directive. It was found to be influenced by culture but not by religion, making it beyond the scope of being demanded under Article 25, which is a qualified right. Additionally, under the limitation placed on this right for maintaining ‘public order’, the uniformity sought in dresses in schools, and since the prerogative of an educational institution is
placed on a higher pedestal over the demand of the students in the case of Fathima Tasneem v State of Kerala, the Hijab prohibition was held not to infringe any of the rights of Muslim women. In the most recent outcome on this issue, a split decision has been delivered by a two- judge Supreme Court bench in the case of Aishat Shifa v. State of Karnataka. Due to divergent views on the issue, a higher bench will now address the matter. In view of the same, the Supreme Court has fast-tracked the case in 2023 to have it referred to by a three-judge bench.

The Conflict of Choices: Law or Religion

A broader perspective on this issue of gender, religion, and liberty raised in the Karnataka High Court can be formed by juxtaposing the Indian and Iranian scenarios, where the latter country witnesses women publicly burning Hijabs and cutting their hair across the country as a mark of protest against Iran’s strict Hijab laws and in solidarity with Mahsa Amini’s cause, in contrast to the former country’s women donning Hijabs to their voices heard. Two distinct narratives emerge – one unfolds in India’s struggle for choice, while another unravels in Iran’s quest for modernity. In Karnataka, the battle for women’s autonomy in wearing the Hijab is waged against political constraints, revealing a tug-of-war between religious freedom and political motives. Meanwhile, in Iran, the pendulum swings from pre-revolutionary “progressive” stances to post- revolutionary veiling mandates, all viewed through the lens of Western perceptions of progress, expressed by scholars including Sara Slininger.

Scholars like Nicholas D. Kristof and Sheryll Wu Dunn stress that conservative attitudes in Islamic nations stem more from culture than religion, debunking the oversimplified perception of oppression. At the same time, Haleh Esfandiari has astutely questioned how political actions regulating the right to mandatorily wear or absolutely ban the Hijab are equally oppressive stances.

The common thread here remains the precious right of choice, whether to don or shed the Hijab, remains a fiercely contested terrain. As these women tread distinct paths in India and Iran, one truth endures: the fight for autonomy is nuanced, shaped by politics, culture, and the unyielding spirit of those who demand their rightful place in defining freedom.

The Veil of Ignorance:

Scrutinizing the Viability of the Hijab Ban in India It is no doubt accepted that the view declaring the Hijab ban holds good constitutionally and
upholds the aspects of reserving the security and safety of the nation in India, which also makes it possible to make a rational legal argument against the insistence on wearing the Hijab since even majorly-Muslim countries, such as Azerbaijan, Kosovo, Tunisia, Lebanon, and Morocco, have varying degrees of burqa and Hijab prohibitions, a recent instance being the face veil, which has been outlawed in academic settings in Egypt and Syria. In India as well, exceptions have been created time and again for purposes of security (under the principles established in M. Ajmal Khan v The Election Commission of India) and academic fairness (under the principles
illustrated in Amnah Bint Basheer v CBSE). Yet, regardless of legal astuteness, it cannot be denied how adversely this decision may end up impacting the lives of Muslim girls.

It must be acknowledged that law and society cannot remain in watertight cubicles as they constantly interact and influence each other. The Natural School of Law contends that rather thanmerely considering the letter of the law, religion, morality, liberty, justice, and conscience should hold equal relevance while interpreting the law. It is well established that social influences have a bearing on the course that legislation will take. No judgement should be passed, which goes against societal truths and has a detrimental impact on a significant many. 

Morality and the spirit of the Indian Constitution call for maintaining a balance and implementing uniformity with some degree of flexibility when appropriate. People can mould themselves according to their own visions, but they must respect others’ freedom to exercise that same liberty. Since a safe learning environment is a prerequisite for quality education and India does not have a homogeneous society, it is crucial to acknowledge the differing levels of needs and comforts enjoyed by different groups. Democracy and freedom cannot be sustained until this concept is respected. Since Hijab is also considered to be a symbol of empowerment by many
Muslim women, eliminating their right to wear it will be equitable to “bullying”.

Another tangible concern involves impliedly snatching away the right to receive a standardised education from numerous Muslim girls. Though Hijab is not a necessary element in Islam and is generally regarded as a symbol of oppression by many, it is a largely prevalent practice that has profound socio-cultural importance. Such a restriction will negatively affect young Muslim girls who will be enrolled into Madrassas instead or made devoid of the opportunity to study altogether owing to conservative parents, societal pressures, or their own convictions. 

A real-time case study to gauge these anticipated consequences can be France’s burqa ban. Firstly, the ban in France primarily aimed for heightened security and peace, but it failed to achieve these objectives. Instead of promoting tranquillity and secularism, the ban intensified distrust among the Muslim minority and exacerbated polarisation within French society. Secondly, the negative impact of a burqa/Hijab ban on Muslim women was studied in a paper published by two Stanford University researchers. To assess the impact, researchers studied two groups: those born before 1986 (pre-ban) and those born 1986 onwards (post-ban). By juxtaposing educational and economic outcomes between Muslim and non-Muslim women, the study indicated that the educational difference between Muslim and non-Muslim women nearly doubled following the ban, with a 6% rise in Muslim girls dropping out of secondary school. Post-ban, Muslim women took longer to finish their education, leading to widened employment and labour force participation gaps. Additionally, Muslim women were less independent, with increased childbirth and living with parents.

A Quagmire of Law and Religion: Seeking the Middle Ground

While several countries across the globe have imposed limits on the Hijab, be they European, African, or Middle-Eastern, the Hijab has historically been neither outlawed nor restricted in public settings in India, where Muslims account for 14% of the 1.4 billion Indians. Our country’s cultural and religious dynamics stand in contrast with those of European nations enforcing absolute bans, and predominantly-Muslim countries have only banned the burqa. 

However, it has long been customary for women of all religions to use headscarves in India, where the Indian Constitution upholds religious freedom with the secular state as its cornerstone. Most Muslim women don the Hijab as a sign of modesty and faith rather than as a piece of mere clothing. The issue presently has found us in a perplexing situation where such a judgement might be a nightmare for those who might be forced to stay out of colleges and schools. It is essential to consider increasing the sensitivity to religious and moral norms and regulations that Muslim women are subjected to right from their childhood, making it difficult to expect them to ditch the headscarf overnight post a court decision. The long-term repercussions of such a decision might involve an even poorer presence of Muslim women in positions of power or to achieve financial and personal autonomy.

A more sensitive approach by the Supreme Court may assist in resolving this matter, as a balanced regulation is necessary. To a certain extent, the burqa may offer concern to security, considering it veils the person of the wearer completely, but so is not the case with the Hijab. To substantiate this, the French ban under Act No. 2010-1192 retakes the spotlight, where two prominent cases, namely Miriana Hebbadj v. France and Sonia Yaker v. France, established that the right to freedom of religion (Article 18) and the right to equality (Article 26) of the International Covenant on Civil and Political Rights (ICCPR) was violated by the French burqa ban. In light of this, while it is popularly contested that reasonable restrictions under Article 18(3) are allowed in favour of security concerns, it is also widely considered that a total ban on the full Muslim veil seems excessive, given the valid need to establish identity in different situations.

It must, thus, not be made a norm for students to surrender their religious rights and beliefs to attain education in state institutions and jeopardising the throngs of people by expecting an overnight change in morality and beliefs of society, be those driven by faith or superstition, must not be made a modus operandi for the courts  Upholding the usage of Hijab in regular academic circumstances and restricting the same in exceptional circumstances which involve concerns for security and academic fairness will ensure a decision fulfilling the rights and interests of all concerned parties, making it necessary for us, as a society, to see beyond outerwear to realise the actual socio-cultural origin, issues, and impacts that such cultural practices have and what repercussions these might lead to in situations of snatching the right to choose.