Hijab Obstinacy: Attempt to Legitimize Rape of non-Muslim Women?
19 Mar 2022 11:47:15
Karnataka High Court upheld the ban of hijab in educational institutions of Karnataka. Previous to announcing the judgment the High Court heard all relevant petitions for 11 days following which the Court announced its verdict on March 15, 2022. In rendering the verdict, the High Court formulated a few questions and had answered them. The questions were as follows:
Q1— Whether wearing hijab is an essential religious practice under Islam?
Q2— Whether wearing hijab is essential for Freedom of expression and right to privacy?
Q3— Was the GO of February 5 issued without application of mind and manifestly arbitrary?
While Karnataka High Court upheld banning hijab in concerned Educational Institutions, the question remained whether this was the maxima of justice our society could expect from Indian Courts. While the Court’s verdict was based on consultation of Islamic texts to confirm whether Hijab was intrinsic to Islam or not, the question remained whether this verdict could create the desirable perception of justice in post-partition India. Had hijab been declared a quintessential mandate of Islam by Islamic religious texts, would Judiciary of secular India have been compelled to uphold the demand of hijab even after partition of undivided India on demand of Islamists and in spite of increasing aggression of radical Islamists within the subcontinent? If Secular India still has to refer to Islamic texts for adjudicating any litigation between the Muslim community and the secular State of India, viewing it as failure of partition and unreasonable weakness of Indian Judiciary doesn’t appear devoid of legitimacy. It would be surprising if people are not found all poised to know the real reason behind such weakness of our judiciary.
Arguments may be raised that since all Muslims didn’t leave for Pakistan, those who stayed back have the right to religion as per Article 25 of the Constitution of India. Such an argument is tenable up to the extent that though all Muslims of India were legitimately destined to shift to Pakistan as Pakistan was politically earmarked for Muslims of undivided India, all Muslims didn’t leave in practice and post-partition India became liberal enough to respect their choice of staying back. It was accepted to their choice and not their religion. Who else other than the judiciary could make it duly explicit? For those who stayed back, it seems necessary to presume that they upheld their national identity over and above the religious one to choose India as their homeland over Pakistan. Anything contrary to such presumption becomes demeaning for Pakistan as the Islamic identities of Muslims of Indian subcontinent are undoubtedly nurtured better by the Islamic State of Pakistan than present Bharat. Can Islamic identity be better protected under a secular i.e. non-religious i.e. non-Islamic administration (Bharat) than in an Islamic country (Pakistan)? Certainly not. Any disagreement to such presumption would legitimately amount to defaming and demeaning Pakistan indicating failure of partition necessitating reunification of Bharat. Hence, the Muslims who stayed back in India, it may be presumed, didn’t stay back for better protection of their religious identities. Keeping that in mind, Indian judiciary needs to assume power to adjudicate all matters related to Islamists (except in cases where both plaintiff and defendant are Muslims) exclusively from secular perspective. The Constitution of India has kept such provisions as freedom to religion as per Article 25 is no absolute freedom but subject to Public Order, Morality and Health by the Constitutional prescriptions. In spite of that, while judiciary consulted Islamic texts in deciding for hijab verdict, such consultation itself might appear demoralizing to the self-conscious section of post-partition Indian society & might leave them with a feeling of deprivation and insecurity.
What type of Deprivation?
As partition based on religion mathematically necessitated present Bharat to be culturally non-Islamic in entirety, relevance of Islamic texts in deciding social issues like hijab in present Bharat amounted to putting undue importance to Islamism with respect to all other religious faiths and the preponderant Dharma of Bharat. Bharat is home to people subscribing to various faiths who didn’t call for partition of undivided Bharat. In spite of that, social issues of post-partition India being adjudicated based on Islamic texts amount to depriving people of other faiths combined of their legitimate prepotency.
Arguments may appear that as the Constitution of India prescribes Equality of all before law as per Article 14, the presumption of prepotency of any faith would be unconstitutional. Against such arguments, if any, judiciary is best equipped to explain that as ensuring equality of all does not need to preclude idiosyncratic traits of individual communities, moral prepotency of all other faiths combined in post-partition India over Islamic faith does not, hence, defy or outdo Constitutional prescription under Article 14. The Constitution of India has nowhere prescribed to take history and antecedents of communities into consideration in adjudicating any litigation pertaining to Indian society. The Constitution has not prescribed not to use common sense for any such cause. Hence, to make sure social justice is delivered as promised by the people of India in the preamble of the Constitution, sorting of all litigations between Islamists and the secular State of India is warranted to be based solely on secular parameters (and not on religious texts).
Why Insecurity?
Argument of hijab being exclusively an Islamists’ issue doesn’t seem tenable due to reasonable cause. It has potential to affect the women of all faiths as pro-hijab arguments also included hypothesis like hijab was meant to protect women from rape and molestation implying lack of hijab might make women vulnerable to rape attacks. Such a theory, if gets validated by the Court of Law, might necessitate imposition of hijab upon women of all other faiths in due course of time to protect them from rape and molestation. Thus, it seems tenable to suspect that proactive obstinacy to wear hijab defying school rules might also be a dimension of Islamic aggression upon Indian society as a whole as legitimacy of hijab would amount to imply legitimacy of rape and molestation of non-Muslim, non-hijabi women. The world knows these are two of the prime ammunitions used by the Islamists to intimidate others. Moreover, in the era when Government of India is talking about not only women empowerment but women-led-empowerment, hijab is going to be a huge moral and physical setback for womanhood itself. As hijab, burqa objectifies women as nothing but sex objects, their legitimacy would be moral and political setback for Indian society as a whole because Bharat from time immemorial had never generalized women as sex objects. If Islam does it, it is antithetical to Indian culture. As Indian Muslims had already chosen their Indian identity over the religious one during partition, they required to walk out of hijab wherever it was not allowed by the administration. Rigid demand for Hijab by Islamists gives rise to apprehensions & insecurity in the soul of Bharat.
PDP chief Mehbooba Mufti said in Srinagar on March 15, “On one side, we make big claims on women’s rights & their empowerment & on another, we don’t even give them the right to wear whatever they want; this right shouldn’t be with the Courts”. While choice of attire is indeed the individual’s prerogative and should not ideally come under the jurisdiction of Court, it doesn’t remain a mere choice if pasted a religious tag to it. Did Mehbooba Mufti too indirectly advice Muslim society not to bring in religion in such aspects?
Asaduddin Owaisi, drawing inane comparison between hijab and Sindoor / Tilak etc. expressed disagreement with Karnataka High Court’s verdict conveniently overlooking the fact that hijab is a piece of cloth additional to the uniform which tilak/sindoor / mangalsutra /conch-bangles etc. are not. Any additional pieces of clothes cannot be allowed along with the uniform as that might end up leaving the uniform redundant. If children from various backgrounds started adding up numerous varieties of additional clothes to the uniform in the name of pluralism, discipline would cease to exist which is an indispensable prerequisite for learning together in Institutions. Moreover, in the era of internet technologies, an attire like hijab may be looked upon as a potential security threat and a cheating-enabler in the examination hall scope of which can never be created by allowing hijab. As hijab comprehensively covers head, ears & throat upto the upper part of the chest, a wireless bluetooth or a similar chip device (widely available) may at ease be placed in the ear to facilitate adoption of unfair means in competitive class rooms. In relation to this, no comparison of hijab seems justified with Sikhs' turbans as turban covers only the head and not the ears. In spite of that, Sikhs are also required to abide by all regulations related to public life e.g. wearing of helmet during biking and were given no special relief even from the Supreme Court of India. Muslim men develop a bluish black religio-cultural marker on forehead as a result of repeated namaaz. Tilak/Sindoor etc are comparable to such mark and not with hijab. While Asaduddin Owaisi also accused hijab ban as violation of Article 15, he appeared to have overlooked the fact that allowing Muslim girls to carry a distinctive feature like hijab would rather be an exhibition of favouritism i.e. positive discrimination towards Muslim girls. This would result in violation of Article 15 for all other girls who were non-Muslims. In brevity, it is wisdom for India to move in prophylactic mode regarding Islamic traits of expression keeping in mind the bitter truth of partition and looking at the history, antecedents and recent upsurge of radical Islamists in the subcontinent. India does not seem to be the most suitable place for those women, if any, who feel most empowered in a hijab and/or burqa and think wearing such attires to be their liberty. For people of such psyche, Pakistan is already created breaking away from undivided India. While politicians who treat common Muslims as mere vote bank might end up instigating radical organizations like PFI by making misleading comments, countless Indian Muslims would surely have no problems to go with the Bharatiya civilization.
Q1— Whether wearing hijab is an essential religious practice under Islam?
Q2— Whether wearing hijab is essential for Freedom of expression and right to privacy?
Q3— Was the GO of February 5 issued without application of mind and manifestly arbitrary?
In providing answers to these questions, the Court found wearing of hijab by Muslim women was not part of essential religious practice under Islam & prescription of school uniform was only a reasonable restriction which students could not object against. The Court also endorsed that the Government had power to issue Government Orders. To declare in favour of not distorting institutional uniforms by wearing hijab, the Court had to take refuge to religious texts either to avoid unacceptability of the verdict or to increase sustainability thereof. Karnataka High Court seemed to have assumed stopping hijab based on Constitution’s secular guidelines would not gain much acceptance. However, on the other hand, Indian Supreme Court, earlier, hardly hesitated to order Sabarimala verdict against the faith of Ayappa devotees based on secular provision like “gender equality” of our Constitution. Probability of such apparent disparity in judicial approach for two different communities not appearing as discrimination is less. And real reason behind such discrimination needs to come to public knowledge to prevent wrong conceptions about judiciary to prevail. In a secular country, judicial dictates need to be predominantly secular if not 100% of them. More so because Bharat is the only exclusive country in the whole world that was partitioned based on religion and the Islamic part had negotiated sovereignty as Pakistan.
While Karnataka High Court upheld banning hijab in concerned Educational Institutions, the question remained whether this was the maxima of justice our society could expect from Indian Courts. While the Court’s verdict was based on consultation of Islamic texts to confirm whether Hijab was intrinsic to Islam or not, the question remained whether this verdict could create the desirable perception of justice in post-partition India. Had hijab been declared a quintessential mandate of Islam by Islamic religious texts, would Judiciary of secular India have been compelled to uphold the demand of hijab even after partition of undivided India on demand of Islamists and in spite of increasing aggression of radical Islamists within the subcontinent? If Secular India still has to refer to Islamic texts for adjudicating any litigation between the Muslim community and the secular State of India, viewing it as failure of partition and unreasonable weakness of Indian Judiciary doesn’t appear devoid of legitimacy. It would be surprising if people are not found all poised to know the real reason behind such weakness of our judiciary.
Arguments may be raised that since all Muslims didn’t leave for Pakistan, those who stayed back have the right to religion as per Article 25 of the Constitution of India. Such an argument is tenable up to the extent that though all Muslims of India were legitimately destined to shift to Pakistan as Pakistan was politically earmarked for Muslims of undivided India, all Muslims didn’t leave in practice and post-partition India became liberal enough to respect their choice of staying back. It was accepted to their choice and not their religion. Who else other than the judiciary could make it duly explicit? For those who stayed back, it seems necessary to presume that they upheld their national identity over and above the religious one to choose India as their homeland over Pakistan. Anything contrary to such presumption becomes demeaning for Pakistan as the Islamic identities of Muslims of Indian subcontinent are undoubtedly nurtured better by the Islamic State of Pakistan than present Bharat. Can Islamic identity be better protected under a secular i.e. non-religious i.e. non-Islamic administration (Bharat) than in an Islamic country (Pakistan)? Certainly not. Any disagreement to such presumption would legitimately amount to defaming and demeaning Pakistan indicating failure of partition necessitating reunification of Bharat. Hence, the Muslims who stayed back in India, it may be presumed, didn’t stay back for better protection of their religious identities. Keeping that in mind, Indian judiciary needs to assume power to adjudicate all matters related to Islamists (except in cases where both plaintiff and defendant are Muslims) exclusively from secular perspective. The Constitution of India has kept such provisions as freedom to religion as per Article 25 is no absolute freedom but subject to Public Order, Morality and Health by the Constitutional prescriptions. In spite of that, while judiciary consulted Islamic texts in deciding for hijab verdict, such consultation itself might appear demoralizing to the self-conscious section of post-partition Indian society & might leave them with a feeling of deprivation and insecurity.
What type of Deprivation?
As partition based on religion mathematically necessitated present Bharat to be culturally non-Islamic in entirety, relevance of Islamic texts in deciding social issues like hijab in present Bharat amounted to putting undue importance to Islamism with respect to all other religious faiths and the preponderant Dharma of Bharat. Bharat is home to people subscribing to various faiths who didn’t call for partition of undivided Bharat. In spite of that, social issues of post-partition India being adjudicated based on Islamic texts amount to depriving people of other faiths combined of their legitimate prepotency.
Arguments may appear that as the Constitution of India prescribes Equality of all before law as per Article 14, the presumption of prepotency of any faith would be unconstitutional. Against such arguments, if any, judiciary is best equipped to explain that as ensuring equality of all does not need to preclude idiosyncratic traits of individual communities, moral prepotency of all other faiths combined in post-partition India over Islamic faith does not, hence, defy or outdo Constitutional prescription under Article 14. The Constitution of India has nowhere prescribed to take history and antecedents of communities into consideration in adjudicating any litigation pertaining to Indian society. The Constitution has not prescribed not to use common sense for any such cause. Hence, to make sure social justice is delivered as promised by the people of India in the preamble of the Constitution, sorting of all litigations between Islamists and the secular State of India is warranted to be based solely on secular parameters (and not on religious texts).
Why Insecurity?
Argument of hijab being exclusively an Islamists’ issue doesn’t seem tenable due to reasonable cause. It has potential to affect the women of all faiths as pro-hijab arguments also included hypothesis like hijab was meant to protect women from rape and molestation implying lack of hijab might make women vulnerable to rape attacks. Such a theory, if gets validated by the Court of Law, might necessitate imposition of hijab upon women of all other faiths in due course of time to protect them from rape and molestation. Thus, it seems tenable to suspect that proactive obstinacy to wear hijab defying school rules might also be a dimension of Islamic aggression upon Indian society as a whole as legitimacy of hijab would amount to imply legitimacy of rape and molestation of non-Muslim, non-hijabi women. The world knows these are two of the prime ammunitions used by the Islamists to intimidate others. Moreover, in the era when Government of India is talking about not only women empowerment but women-led-empowerment, hijab is going to be a huge moral and physical setback for womanhood itself. As hijab, burqa objectifies women as nothing but sex objects, their legitimacy would be moral and political setback for Indian society as a whole because Bharat from time immemorial had never generalized women as sex objects. If Islam does it, it is antithetical to Indian culture. As Indian Muslims had already chosen their Indian identity over the religious one during partition, they required to walk out of hijab wherever it was not allowed by the administration. Rigid demand for Hijab by Islamists gives rise to apprehensions & insecurity in the soul of Bharat.
PDP chief Mehbooba Mufti said in Srinagar on March 15, “On one side, we make big claims on women’s rights & their empowerment & on another, we don’t even give them the right to wear whatever they want; this right shouldn’t be with the Courts”. While choice of attire is indeed the individual’s prerogative and should not ideally come under the jurisdiction of Court, it doesn’t remain a mere choice if pasted a religious tag to it. Did Mehbooba Mufti too indirectly advice Muslim society not to bring in religion in such aspects?
Asaduddin Owaisi, drawing inane comparison between hijab and Sindoor / Tilak etc. expressed disagreement with Karnataka High Court’s verdict conveniently overlooking the fact that hijab is a piece of cloth additional to the uniform which tilak/sindoor / mangalsutra /conch-bangles etc. are not. Any additional pieces of clothes cannot be allowed along with the uniform as that might end up leaving the uniform redundant. If children from various backgrounds started adding up numerous varieties of additional clothes to the uniform in the name of pluralism, discipline would cease to exist which is an indispensable prerequisite for learning together in Institutions. Moreover, in the era of internet technologies, an attire like hijab may be looked upon as a potential security threat and a cheating-enabler in the examination hall scope of which can never be created by allowing hijab. As hijab comprehensively covers head, ears & throat upto the upper part of the chest, a wireless bluetooth or a similar chip device (widely available) may at ease be placed in the ear to facilitate adoption of unfair means in competitive class rooms. In relation to this, no comparison of hijab seems justified with Sikhs' turbans as turban covers only the head and not the ears. In spite of that, Sikhs are also required to abide by all regulations related to public life e.g. wearing of helmet during biking and were given no special relief even from the Supreme Court of India. Muslim men develop a bluish black religio-cultural marker on forehead as a result of repeated namaaz. Tilak/Sindoor etc are comparable to such mark and not with hijab. While Asaduddin Owaisi also accused hijab ban as violation of Article 15, he appeared to have overlooked the fact that allowing Muslim girls to carry a distinctive feature like hijab would rather be an exhibition of favouritism i.e. positive discrimination towards Muslim girls. This would result in violation of Article 15 for all other girls who were non-Muslims. In brevity, it is wisdom for India to move in prophylactic mode regarding Islamic traits of expression keeping in mind the bitter truth of partition and looking at the history, antecedents and recent upsurge of radical Islamists in the subcontinent. India does not seem to be the most suitable place for those women, if any, who feel most empowered in a hijab and/or burqa and think wearing such attires to be their liberty. For people of such psyche, Pakistan is already created breaking away from undivided India. While politicians who treat common Muslims as mere vote bank might end up instigating radical organizations like PFI by making misleading comments, countless Indian Muslims would surely have no problems to go with the Bharatiya civilization.