Hijab: A Controversy

This Article is written by Phalak Lamba, a student of 2nd year of B.A., LL.B studying at Lovely Professional University, Phagwara. In this article, a critical analysis of the hijab controversy is discussed.

Table of Contents

Introduction

The veil or Hijab is currently one of the most contentious issues in both Muslim countries and the West, causing collective outrage. The “veil” is clearly at the heart of a complex subject that is linked -in a rather perplexing way- to different notions such as tradition, modernity, freedom, women’s bodies, identity tragedy, and the struggle for coexistence in a heterogeneous society.

Hijab is a modern term for the head coverings used by Muslim women. While Islamic headdresses can take different forms, hijab is most commonly associated with a cloth wrapped around the head and neck, concealing the hair but leaving the face exposed.

The term hijab was originally used to refer to a divider, a curtain, or the Islamic standards of modesty and attire for women in general. In the Quran, the term for a headscarf is khimar. Muslim girls and women wear the hijab to safeguard modesty and privacy from unrelated males, as per some.

According to Quran

First and foremost, it is critical to emphasize that the term “Hijab,” which is widely used, does not always refer to the scarf that Muslim women wear to cover their hair. The term hijab does not represent this connotation anywhere in the Qur’an. The semantic and conceptual meaning of the Qur’anic term Hijab, on the other hand, demonstrates the polar opposite of what is meant to be the case in reality.

In the Qur’an, the term “Hijab” appears seven times, each time with the same meaning. “Hijab” refers to a curtain, a wall, or anything that covers, conceals, or protects something.

But the verse that has been most often used to prove the “obligation” of veiling for women and that mentions the term Hijab is the following: translated by Muhsin Khan “O you who believe! Enter not the Prophet’s houses, except when leave is given to you for a meal, (and then) not (so early as) to wait for its preparation. But when you are invited, enter, and when you have taken your meal, disperse, without sitting for a talk. Verily, such (behaviour) annoys the Prophet, and he is shy about (asking) you (to go), but Allah is not shy about (telling you) the truth. And when you ask (his wives) for anything you want, ask them from behind a screen, that is purer for your hearts and for their hearts. And it is not (right) for you that you should annoy Allah’s Messenger, nor that you should ever marry his wives after him (his death). Verily! With Allah that shall be an enormity.

As demonstrated here, the Hijab concerns just the wives of the Prophet and meets a fortuitous prerequisite to regard the personal life of the Prophet. Moreover, it does not address, in any capacity, a specific model of dress. The embodiment of this prerequisite pointed to teaching Arabs the opportunity to regard the privacy of individuals and to be courteous.

It is in this way very certain that the term Hijab does not actually allude to the significance given these days as the scarf that ought to cover the head. The Hijab does not have anything to do with any Islamic female dress. It is fairly an image of the division between open life and private life in the era of the Prophet.

What is this Hijab Controversy?

In December, a government-operated school in the Udupi district banned six understudies from entering the study hall since they were wearing hijabs. As the debate spiralled, understudies from a college in the Mangaluru district made comparative cases.

Gradually more understudies across Karnataka made some noise as schools forced controls. Muslim understudies said they were being denied their fundamental rights under Article 14 equality before law, Article 21A Right to education and Article 25 Freedom of conscience and free profession, practice, and propagation of religion.

The aftermath of this issue

With the spreading of this issue, the students belonging to other religions started raising questions which started counter-fights driven by periphery Hindu gatherings, and soon a segment of understudies and others were occupied with a threatening deadlock with those fighting the hijab boycott.

The Hindu gatherings started wearing saffron cloaks and scarves that underlined the mutual strain behind the occurrence. The fights before long spread to different regions and, surprisingly, outside Karnataka, with reports of savagery and stone-pelting.

With the increasing tussle, the government decided to issue Prohibitory orders in impacted regions in Karnataka, including Udupi, Bengaluru, Shivamogga, and Dakshina Kannada, and schools and universities were momentarily requested to close.

Karnataka High Court Takes on this Issue

Petitioner’s View

The high court, as per the petition, neglected to distinguish that the option to wear a Hijab fall under the class of “expression,” and henceforth is guaranteed under Article 19(1)(a) of the Constitution.

The high court neglected to recognize that the right to privacy ensured by Article 21 of the Constitution incorporates the liberty to wear a headscarf. As per the petition, the right to privacy includes the right to freedom of religion.

We will not attend a university without a hijab since it is a fundamental piece of the religion: Students from Government PU College for Girls in Udupi. Our battle will proceed. We are disheartened by the high court judgment. We feel deceived: Students from Government PU College for Girls in Udupi

State’s View

The state represented by advocate general Prabhuling Navadagi argued that the petition filed by the students comes under Article19(1)(A)– Freedom of speech and expression and not Article25- Freedom of conscience and free profession, practice, and propagation of religion of Indian constitution as argued by the Muslim students.

If the wearing of a hijab is perceived as a fundamental strict practice via a court request, all Muslim ladies would be committed to wearing it, including the people who would rather not do as such, Navadagi said, addressing the state government.

Advocate general Prabhuling Navadagi argued in court with the points

“It hits at the liberty of that individual. The choice to wear what we want and choose not to wear what we do not want. Every woman of every faith has that choice. There cannot be religious sanction by way of judicial declaration,” Further he argued the independent claim of 19(1) (A) cannot go together with Article 25. “The consequence of the demand to declare Hijab as an essential religious practice is huge because there is an element of compulsion or else you will be expelled from the community,”
The wearing of the hijab was not an essential religious practice of Islam, the advocate general reiterated. “If it is not obligatory, it is not compulsory. What is not compulsory is not essential. Therefore, it does not fall within the realm of essential religious practice,” he argued.
Ultimately, if anyone is coming to the court for a declaration that we want every woman of a particular faith to wear that (hijab), would it not violate the dignity of that person whom we are all subjugating?” he asked in his concluding remarks.

Reaction of the Petitioners

Aliya Assadi, one of the petitioners, told reporters that she felt let down by the verdict.

“We had so much hope in our judicial system and our constitutional values. We feel we have been betrayed by our own country,” she said.

Another petitioner, Almas AH, added that they will take the fight to the top court.

“I am not going to go to college without my hijab. And I will fight for it because the hijab is an essential part of my religion,” she said.

Supreme Court Take

The petitioning girls wanted this issue to be reviewed quickly so they may take the school examinations, but the highest court in India rejected their request. N.V. Ramana, India’s chief justice, dismissed the arguments and stated that the topic shouldn’t be sensationalized because it has no bearing on the exam.

On April 26, N.V. Ramana, the head of India’s judiciary, promised that the Supreme Court would take up this matter for review.

Recent advancements in the case

On October 13, 2022, the Supreme Court gave spilt verdict on this particular issue. The two judge bench presided by Justice Hemant Gupta and Justice Sudhanshu Dhulia gave a two diverging opinions on the matter

Justice Hemant Gupta of the opinion, “Secularism is applicable to all citizens, therefore, permitting one…. community to wear their religious symbols would be antithesis to secularism.”

SCHOOL AND RELIGION: Religion has no meaning in a secular school run by the state. “Students are free to profess their religion and carry out religious activities other than when they are attending a classroom.”

UNIFORM, EQUALITY: “… Uniform fosters a sense of equality ‘equality’ amongst students- instills a sense of oneness, diminishes individual differences.”

While Justice Sudhanshu Dhulia was of the opinion, “Wearing hijab should be simply a matter of choice. It may or may not be a matter of essential religious practice, but it still is, a matter of conscience, belief, expression.” “Asking the girls to take off their hijab before they enter the school gates, is first, an invasion of their privacy, then it is an attack on their dignity, and then ultimately it is a denial to them of secular education… There shall be no restriction on the wearing of hijab anywhere in schools and colleges in Karnataka.”

CLASSROOM IS DIFFERENT: Though discipline is required in educational institutions, they can’t be put on par with jail or a military camp, as was cited by HC while describing schools as “qualified public spaces”

TICKET TO EDUCATION: “if it is worn as a matter of her choice, as it may be the only way her conservative family will permit her to go to school…her hijab is her ticket to education.”

The case will be further heard again by the larger bench.

Critical Analysis

The Indian Constitution guarantees religious freedom. Despite this, it is the weakest of all the fundamental rights in Part III of the Constitution. It is the weakest because it is susceptible to all other basic rights, as well as clawback clauses that are a component of every fundamental right in the Indian Constitution. Thus, if there is a disagreement between Article 25’s Freedom of Religion and Article 14’s Equality, the latter will prevail. In the same way, if there is a contradiction between Article 21 and Article 25, the former takes precedence. Furthermore, the state has the authority to control religious freedom for the sake of public order, health, and morality.

Religious freedom is not just to have confidence in religion, however incorporates the option to practice or show it. The Supreme Court has set out that what is ensured under religious freedom is the beliefs that form the core of the religion and anything which is not the center or the core has no insurance under Article 25.

If the state had made it illegal for Muslim students to wear hijab in general, presuming that wearing hijab is a basic right under Article 25, the state would have committed a direct violation of fundamental rights. An indirect violation occurs when a general rule, such as the policy of neutrality, unintentionally violates the fundamental right of a sector of society due to the law’s generic nature. In this case, the issue is under the question of any indirect violation of basic rights as a result of neutrality. The need for such rules to be valid is that they treat everyone equally in order to maintain the value system’s neutrality.

The Quran gives the reference of modest clothing under the Surah Noor (24:31), translated by Muhsin khan reads as

“And tell the believing women to lower their gaze (from looking at forbidden things), and protect their private parts (from illegal sexual acts, etc.) and not to show off their adornment except only that which is apparent (like palms of hands or one eye or both eyes for the necessity to see the way, or outer dress like veil, gloves, head-cover, apron, etc.), and to draw their veils (Khumurihina) all over Juyubihinna (i.e., their bodies, faces, necks, and bosoms, etc.) and not to reveal their adornment except to their husbands, their fathers, their husband’s fathers, their sons, their husband’s sons, their brothers or their brother’s sons, or their sister’s sons, or their (Muslim) women (i.e., their sisters in Islam), or the (female) slaves whom their right hands possess, or old male servants who lack vigour, or small children who have no sense of the shame of sex. And let them not stamp their feet so as to reveal what they hide of their adornment. And all of you beg Allah to forgive you all, O believers, that you may be successful.”⁵

In this passage, the term Khumurihina (plural of Khimar) alludes to the scarf that women then used to wear.

When believing women are in public, the Qur’an instructs them to fold their scarves (Khimar) over their chests (Juyubihina) to cover the upper portion of their busts.

In the presence of men with whom they do not have a direct family link, the majority of Muslim scholars and exegetes agreed that believing women must cover their hair with a Khimar and leave just their faces and hands uncovered.

Given the distinction between Hijab and Khimar, we have the right to wonder why we continue to use the term Hijab for what the Qur’an speaks to as a scarf or Khimar.

The word hijab does not appear once in this Quranic edict. ‘Wrap their head-covers over their chest,’ according to the text is mentioned One can wonder if wearing a Hijab is the only option to conceal a woman’s chest. When Allah prescribed this verse for believing women, did he foresee merely a hijab? The manifestation of covering the chest with a variety of clothes cannot be ruled out by a book with universal application. Salwar-dupatta and saree are as nice as hijab in South India.

Is the hijab the only garment that satisfies Japanese women or an individual belonging to another religion who wishes to comply with 24:31 if they want to convert to Islam? Is it possible for God to prefer one type of clothing to another with the same result as the hijab? Would it be non-confirming to 24:31 if a dupatta were worn over the head in such a way that it covered the chest?

It is important to remember that the researchers’ findings were limited to a certain geological location around the world. The tafsir was written with only that limited information. Most women’s head-covers, as worn by women outside the Middle East, are incomprehensible (be it pre-Islamic or Islamic).

Hijab ought to be perceived as a piece of material to cover the head and chest of ladies the same. It very well might be one piece of fabric or may come from two bits of garments and should remember the topographical and geographical local culture and practices in mind.

If we argue that the hijab, as it is currently understood by Muslim women in India, is the sole item of clothing that protects modesty, we will be arguing that all other clothing is vulgar and unfit for women – because these are Allah’s words for both the present and the future. So, in order to comply with Quranic edict 24:31, a future Muslim convert must give up their clothing or traditional attire, which is ludicrous. Should a Japanese or any other person belonging to another religion who wants to convert to Islam give up her traditional clothing because it is Allah’s requirement that the entire world becomes Muslim sooner or later?

Nobody is against the hijab in general; the issue is the limited restriction of its wearing in select settings, like as schools and colleges. As a result, the question is whether there is a violation of Article 25 by outlawing the hijab only in school or college and not elsewhere.

Having said that, the fact that the hijab, as it is known in the Middle East, is prohibited in many countries, including Islamic countries, demonstrates that it is not an essential religious practice and so might be regulated by the state. Many times, the European Court of Justice has ruled in favour of banning the hijab, most notably in the instances of IX v Wabe and MH Müller Handels v MJ [2021 EUECJ C-804/18 and C341/19]. Employers in these two cases forbade employees from wearing religious symbols at work.

As a result, the hijab does not fall under the right to profess religious faith granted by Article 25 but is a form of expression and is an individual’s choice

Conclusion

From studying all the materials and facts according to the perspective of the Indian constitution the wearing of a hijab is a form of expression and a personal choice of a woman whether she wants to wear it or not but it is not essential in Islamic practices. India is a diverse and secular nation and to maintain peace and harmony among different religions in schools and colleges the principle of neutrality is important to practice where everyone needs to be treated equally without prejudice. In a school or college students from different religions come and study and to not favour any religion there is a necessity to adapt to some rules and regulations to provide an environment that is safe for every student from different religions.

As it is been continuously claimed that it is their right under Article 19(1)(a) of the Indian constitution, but further article 19(2) clearly states that nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence⁶, which clearly means that any action which will pose threat or danger to Indian peace, harmony or its interests will be objected by the intervention of the government and necessary measures and steps will be taken to resolve such issues taking everyone’s interest in mind.

Prohibition of certain religious symbols or uniforms in an institution is made to not promote any religion or group. If there were no restrictions people thinking it is their fundamental right could carry or wear clothes or symbols belonging to their religion which might be offensive to the student belonging to another religion and these kinds of situations can lead to tussles or struggles between two religions which is not what an educational institute is for which would be a rather misuse of the fundamental rights given to an individual. Thus, every fundamental right has been provided with some restrictions so it cannot be misused by anyone for their personal vendetta. Thus, schools and colleges have been given the power to form a dress code system to avoid any religious conflicts in an educational institute.

Around the world controversies

As India is dealing with the issues on the topic of hijab and huge controversies break through all over India whether it is a form of expression or a fundamental right. Similarly, Iran is facing major protests over strict hijab rules. Women are challenging these hijab rules and the whole situation is aggravated by the unjust death of an Iranian woman named Mahasa Amini by morality police for not obeying and complying with the hijab rules. She was seen manhandled by female police in a video which was recorded which caused huge protests all over the country where women are seen chopping their hair and seen burning their hijabs publicly.

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