By Olav Albuquerque
Karnataka has followed Gujarat as a laboratory with which the RSS ideal of a Hindu Rashtra is being birthed. The prohibition of hijab in the sarkari classroom has set the state aflame, in furtherance of the mandate of their masters in Delhi and Nagpur, which is the centre of the RSS vision of a new Bharatmata.
Bharatmata is the mother goddess which Hindus worship as symptomatic of their religion originating in India, just like their forefathers in what has been called as Pitrabhumi and Punyabhumi, which are essential requisites for Indian citizenship in a Hindu Rashtra.
The Karnataka chief minister himself has given an impetus to those steps in building a Hindu Rashtra which the legislature and judiciary must endorse. He has, on two recent occasions, justified the actions of youth who are “reacting” to “provocations” that grow longer each day.
These pertain to minorities securing jobs in Covid war rooms, minorities praying together in private places, and mixed couples travelling together in public transport, humour, comments on the ironies of Brahmin mathadhipathis who visit Dalit homes, people’s personal food habits, and now, of course, whether Muslim women should be allowed to wear the hijab.
But what has all this got to do with the North-East? All Northeastern states are dominated by various Christian denominations, which are peaceful but whose tribal populations are sought to be reconverted to Hinduism in what is known as “gharwapasi,” or return to the original religion of their ancestors. This is why we in the North-East states should be aware of what is taking place in the rest of India. The tribes of the North-East have their own unique personal laws which govern marriage, divorce, succession, inheritance.
The missionaries who came from Europe in the 1800s converted these tribes to Christianity which is vociferously practised throughout the seven Northeastern states. Attempting to reconvert these tribal Christians to Hinduism – like banning the hijab in Karnataka colleges— would be foolhardy and dangerous.
The right to education is guaranteed to all Indian children, irrespective of religion. The Karnataka Education Act, 1983 is subsumed by the Right to Education Act, 2009 which in turn, is subsumed by Articles 25 to 27 of the Constitution which permits restrictions of health, public order and morality on the citizens’ right to practise, profess and propagate any religion. The right to wear a hijab will determine whether minorities really are free to profess and practise their own religion.
Muslim girls must defy gender stereotypes to get an education in the rest of India by escaping ghettoization to build their careers. After the oil boom collapse in the Gulf countries, Muslims have been deprived of quality education because their madrassas fuel the stereotypes of being sectarian seminaries where religious indoctrination overrides vocational training.
Orthodox parents may force their daughters to wear the hijab outside their homes, which is their fundamental right. So, invoking section 133 (2) of the Karnataka Education Act, 1983 to prevent these Muslim girls from entering classrooms will thwart their education. Priyanka Gandhi’s assertion that women have a right whether to wear a bikini or a hijab may be anathema to a majoritarian-turned-authoritarian government accused of using Pegasus to snoop on us.
What constitutes an essential part of a religious practice must be ascertained with reference to the doctrines of that religion itself, the Supreme Court held in the 1954 Shirur Mutt case, which ironically also originated in Udupi where the hijab row began. But legal scholars criticise this crucial test because, in general, judges are not theological experts.
Every religion has its own unique symbols – be it the Sikh turban, the Muslim burqa, the Christian Cross, the Hindu tikka on the forehead or the Parsisadra. And every Indian has the right to wear it proudly, subject to health, public order and morality. The right to practise one’s religion is a negative right, which means the state cannot enact laws to nullify this right.
The successive judgments of the Supreme Court have whittled down secularism as the founding fathers envisaged it. Today, the government propagates that its version of secularism is to treat all religions equally. But if we believe that, we are living in a delusional world. Most of the laws enacted from 2014 favour a certain community – never mind what the Constitution declares.
In a 2004 ruling, the Supreme Court held the Ananda Marga sect had no fundamental right to perform Tandava dance in public because it was not an essential religious practice whereas, in 2016, a three-judge bench of the Supreme Court upheld the discharge of a Muslim airman from the Indian Air Force for keeping a beard.
The IAF airman was discharged because keeping a beard did not constitute an essential religious practice in Islam as distinguished from Sikhism, which enjoins its followers to grow their hair. Using the same logic, wearing of a hijab is also not an essential religious practice of Islam.
The right to profess, practise and propagate any religion of your choice subject to decency, public order and morality has become a chimera because laws enacted by a Hindu majoritarian state have prohibited beef, raised the marriageable age of girls to 21 years and made it compulsory to declare before a magistrate that one is changing one’s religion to avoid charges of love jihad – of which there was no data, according to the government’s own admission.
So, now banning the hijab may be viewed with suspicion because, although it is not an essential religious practice, it is part of customary law. The Quran enjoins all Muslim women to be submissive to men who are their guardians and protectors, which implies Karnataka cannot ban Muslim women from wearing the hijab.
The founding fathers argued that the state is interfering in religious customs by enacting a uniform civil code to homogenize laws of inheritance, marriage and divorce. Any citizen could take the state to court because such laws were justiciable if they restricted fundamental rights.
The state can enact laws to curtail fundamental rights such as freedom of speech and expression, the right to choose your attire, and the twin rights of religious freedom, which is part of the right to privacy. But these laws will become justiciable because it is ultimately the courts that must decide what is part of an essential religious practice.
Politicians can ban the hijab to inflame religious sentiments. For politics and law are instruments of oppression and compromise. Faith is not.
(The writer is a senior journalist-cum-advocate of the Bombay High Court)