Over the past month, the Indian state of Karnataka has been in the news as protests related to a ban on Muslim students wearing the hijab (headscarf) in the classroom escalated and spread across the state.
The tensions led to violent clashes between those supporting the ban and those against it, drastically affecting the education of students who have already been hit by the pandemic.
The controversy began on 28 December 2021 when authorities of an educational institution in Udipi, Karnataka banned six Muslim girls from entering with their hijabs (headscarves) on. One of the students filed a petition in the Karnataka High court demanding the right to wear the hijab under Article 14 of the Indian constitution, which recognises equality and equal protection under the law, and Article 25, which stipulates that all citizens have the right to freely profess, practise and propagate religion.
Several similar incidents were reported across the state in January 2022, with five other colleges banning Muslim girls from entering with their headscarves on. This time, the girls started protesting outside the college gates, while Muslim male students also joined the protests demanding that their female counterparts be given the right to wear whatever they choose to.
The situation quickly escalated as male and female Hindu students started counter protests at several colleges, wearing saffron shawls and demanding that Muslim girls should not be allowed to wear the hijab in the classrooms.
As protests continued, on 5 February the Karnataka government issued an order placing a ban on clothes that ‘disturb public order’. The order gave a written directive which placed the decision in the hands of the institutions themselves while also stating that the hijab was not an essential religious practice and the right to wear it could not be protected under Article 25 of the constitution.
This led to massive protests across the state, with police using lathi (bamboo sticks) in violent clashes with protesters. In several parts of the state, authorities imposed Section 144 of the Code of Criminal Procedure, which enables the prohibition of assemblies of four or more people in an area.
In order to avoid further clashes, the Karnataka government declared a three-day holiday from 9 to 11 February for all high schools and colleges until the matter was resolved in the court. As colleges reopened after the holiday and the first hearing of the matter took place, the High Court issued an interim order restricting “all the students regardless of their religion or faith from wearing saffron shawls, scarves, hijab, religious flags or the like within the classroom.”
The ruling BJP party in Karnataka state supported the ban, while the state opposition Congress has publicly come out in support of the Muslim students.
A legal battle
After a marathon hearing that started on February 10 and continued until February 25, the Karnataka High Court decided to reserve its verdict.
In the first few hearings, the petitioners’ counsel argued that the hijab is indeed an essential part of Islam, while acknowledging that the burqa or purdah are not, as concluded by two earlier judgements by the Madras High Court and the Kerala High Court from 2004 and 2015 respectively.
Meanwhile, the Attorney General, representing the state and defending the February 5 order said that there was no proper evidence that wearing of hijab is an essential Islamic practice and therefore cannot be protected under Article 25 of the constitution.
The petitioners also argued that wearing a hijab can be protected under Article 19 1 (A) which guarantees freedom of expression. However, like every other right, this is not absolute and Article 19 (2) states that this right can be restricted in the interest 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 offence.”
The state government had justified the ban using the threat to ‘public order’ clause, but prominent activists such as Tehmina Arora have pointed out that exactly how a headscarf can cause public disorder is not clear.
The petitioners’ counsel also highlighted the apparent discrimination in the fact that other expressions of faith like a Hindu wearing a bindi (a coloured dot applied at the centre of the forehead), a Christian wearing a cross or a Sikh wearing a turban were not banned.
Despite these efforts, on 15 March the High Court upheld the ban, stating that wearing the hijab is not an essential part of Islam.
Forced to choose between education and faith
It must be noted that there are some sections of Indian society that view the hijab as a form of oppression, and indeed that some women and girls are forced to wear it in violation of their rights to freedom of expression and freedom of religion or belief. This must be addressed, but imposing a blanket ban on all those who wear the hijab, including the many who willingly choose to do so, is not the appropriate response.
In its current form, the hijab ban presents a barrier to some young women and girls gaining access to education, and while the battle between the supporters of the ban and those against it continues, it is the students who suffer as they are forced to choose between their education and their faith.
CSW has previously reported that Muslim girls already have some of the lowest literacy rates in India, due to several factors such as poverty, lack of all-girls schools and reluctance of parents to send them to schools. If this current ban is not swiftly lifted, it could have multi-fold consequences for the future of Muslim women in the country.
By CSW’s India Desk