As a result, Aisha Shifa and Tehrina Begum, born and brought up in a small town called Kundapura in Udupi district of Karnataka, have now found it difficult to continue their studies at the Government Pre-University College, Kundapura. Both students were in second year. When she enrolled in her first year last year and started going to college, she had been wearing a hijab from day one — a scarf that covers the head and neck, but the face is visible.
They wore hijabs in addition to the prescribed uniform. But on February 3, 2022, he was stopped at the main gate of the college and told that he would have to remove the hijab before entering the college. When he refused, he was denied entry and after eight months the matter came and stood there.
Hijab is no different
It is not that wearing a woman’s hijab insults anyone. It is not against public order, decency, morality or health. Despite the religious importance, hijab-wearing women are not very different from women in India who are more likely to wear a saree or dupatta pallu.
There are two approaches to the question of ‘choice’ related to hijab wearing. I would like to describe these two points of view by quoting the opinions of two hon’ble judges, Justice Hemant Gupta and Justice Sudarshan Dhulia:
Justice Gupta: “The practice of wearing hijab can be a ‘religious practice’ or an ‘essential religious practice’ or it can be social conduct for Islamic faith women. … Religious faith cannot be applied in a secular school built with public money. ’’
Justice Dhulia: “Whether wearing hijab is an essential religious practice or not is not necessary to resolve this dispute. If there is honesty in faith, and does not harm anyone because of it, then there can be no reasonable reason to ban the hijab in the classroom. ’’
Justice Gupta: “… The College Development Committee of the state government is empowered to ensure that it is mandatory for students to come in prescribed uniform, this does not violate the freedom guaranteed under Article 19(1)(a), but provided under Article 14
Justice Dhulia: “Asking a pre-university student to take off her hijab at the main gate of her school is a violation of her privacy and dignity. This is clearly a violation of the fundamental rights enjoyed by it under Articles 19(1)(a) and 21 of the Constitution. ’’
Justice Gupta: “Therefore, the purpose of justice, liberty, equality or fraternity stated in the Preamble of the Constitution should be better served by removing any religious differences, inequalities and treating students equally before they become adults.” ’’
Justice Dhulia: “It is time to promote sensitivity, empathy and understanding among them towards different religions, languages and cultures. This is the time when they should learn not to panic over our diversity, but to enjoy this diversity and celebrate it. ’’
Justice Gupta: “If they choose not to attend classes because of the prescribed uniform, it will be considered a voluntary decision of such students. It cannot be said to be a violation of Article 29 by the state. ’’
Justice Dhulia: “If a girl wants to wear hijab even inside her classroom, she cannot be stopped. Many girls choose to wear hijab because their conservative family allows them to go to school. That might be the only way in front of them. In such cases, the hijab is a ticket for many girls to study. ’’
Choice or Rule
Some commentators have complained that while the movement to remove the hijab is going on in conservative Iran, it is surprising that a section of the Muslim community in modern India is running a movement to protect the right of girls to wear the hijab in classrooms.
The criticism is completely wrong. On a closer look, the dispute is similar in both Iran and India: it is about ‘choice’. It’s like a controversy over a woman’s abortion option in the US.
The dispute is between ‘like’ and ‘rule’. ‘Choice’ represents freedom, dignity, privacy and diversity, while ‘rules’ often operate by force for majoritarianism, intolerance and uniformity. ‘Choice’ may prove to be a helpful product of ‘rule’ in some situations.
This seems attractive in the grounds enshrined in Article 19(2) or Article 25(1) of the Constitution—public order, decency, morality and health—and some other provisions of Part III (fundamental rights) of the Constitution. In the absence of such grounds, the ‘alternative’ must prevail.
Justice Sudarshan Dhulia upheld the ‘choice’ as hijab could be the only ticket to girls’ education. Justice Hemant Gupta kept the ‘rule’ paramount, though the state felt no mandatory need for it. Now the big bench of the Supreme Court has to hear it and give a decision. In the meantime, each one of you has to decide whether you stand with the ‘like’ or the ‘rule’.