The hijab row began on December 28 last year when a government college in Karnataka sent six women students out of the classroom because they were wearing head scarves over their uniforms. The incident went unnoticed in the national lens. In early February this year, five educational institutions in the southern state denied entry to students who wore head scarves. After this, the issue got some national traction but it became a full-blown national row only after the video of a hijab-wearing girl being heckled by a clutch of men wearing saffron scarves and shouting slogans began circulating on social media networks. The saffron men chanted Jai Shri Ram. In a defiant response to this, the girl shouted Allahu-Akbar. This couldn’t have gone unnoticed – especially at a time when Assembly elections are being held across five Indian states, including Uttar Pradesh, the capital of electoral politics. Incidentally, Uttar Pradesh has a Hindu monk as the chief minister and he is seeking a re-election.
After the heckling video went viral, the Karnataka government closed schools and colleges for three days and chief minister Basavaraj S Bommai made an appeal for peace and harmony.
From a local issue in Udupi town of Karnataka, the hijab row got catapulted into national politics. Prime Minister Narendra Modi said attempts were being made to instigate Muslim women. He did not refer to the hijab controversy, but his statement at two virtual political rallies in Uttar Pradesh had a political message, especially because the statements came close on the heels of the first phase of elections in Uttar Pradesh on February 10. Polling was held in eleven districts, including some with high Muslim population, in the first phase. In 2017, this part of Uttar Pradesh was rocked by Hindu-Muslim riots. Many political observers believe that the riots tilted the scale in favour of BJP so much so that the party virtually swept the elections here. BJP won 55 out of 58 Assembly constituencies, which went to polls in the first phase of 2022 elections.
Congress leaders Rahul Gandhi and Priyanka Gandhi jumped on the bandwagon and made statements regarding the hijab issue. Rahul Gandhi said India’s daughters were being robbed of their future with the government letting hijab come in the way of their education. Priyanka Gandhi said that the constitution gave women the right to decide what they wanted to wear.
The controversy was fanned by political elements in an attempt to polarise the electorate. The BJP has often been accused of winning elections by polarising the voters into Hindus and Muslims. But this time, the party lashed at the Congress for doing politics over a local issue. Political commentators, however, accused the saffron outfits of flaming the issue for greater political benefit in Uttar Pradesh.
Soon it became clear that the controversy was no longer about hijab; it became a political battle with Muslim women being used as pawns.
Some girls approached the Karnataka high court against the decision to disallow them into classrooms if they wore hijab. The petitions were filed before a single-judge bench of Justice Krishna Dixit. But the judge said there were constitutional issues to be examined in the case and therefore referred the matter to a larger bench.
After this, the three-judge bench headed by Karnataka high court chief justice Ritu Raj Awasthi, began hearing the case and passed an interim order restraining students from wearing any sort of religious dress, regardless of their faith, until it decided the petitions in which Muslim girl students said that wearing a headscarf was their fundamental right. The interim order said that not only hijab, even saffron shawls (bhagwa), scarfs, religious flags or the like would not be allowed in classrooms.
In the meanwhile, the issue also reached the Supreme Court but the apex court refused to hear petitions against the interim order of Karnataka high court until the high court passed a final verdict.
The hijab row has led to a constitutional question about religious practices. The Supreme Court has already said, in Commissioner, Hindu Religious Endowments, Madras Vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954), that religion covers all rituals and practices “integral” to a religion.For the essentiality test, the court prescribed two conditions: First, matters of religion will be distinguished from secular practices and second, a religious community must consider the practice in question an integral part of its religion.
The legal question – whether the right to wear a hijab is constitutionally protected as an essential religious practice or not – needs to be settled in constitutional courts. The debate over hijab involves intricate questions of how the Constitution protects religious freedom and the State’s right to impose restrictions on the exercise of right.
The legal position is that the State must protect religious faith and belief but if the religious practices run counter to public order, morality or health, then they must give way before the good of the people of the State as a whole (Masud Alam Vs Commissioner of Police,1956). The Supreme Court settled the essentiality test in 2016 when it upheld the discharge of a Muslim airman from the from the Indian Air Force for keeping a beard. The top court held that keeping a beard was not an essential part of Islamic practices. In 2017, the apex court held that instant triple talaq was invalid and unconstitutional. The court noted that instant triple talaq could not be called an essential religious practice.
The issue of hijab has come up before some high courts in the past but in none of those cases there were authoritative judgment on whether hijab can be constitutionally protected as an essential religious practice in Islam. When the Karnataka high court resumes hearing the petitions, it will be a good opportunity for it to settle this essentiality issue.
