Opinion | Adjudicating on Centuries of Subjugation: Hijab, Fundamentalism, And The Girl Child – News18

The split verdict in the Supreme Court on the hijab issue currently leaves little impact in real time. A tug of war which started out in pre-university collegesand surmounted the streets, finally came to the courts for adjudication, on whether a government order prohibiting the wearing of the Islamic headscarf in pre-university colleges is legal or not. The Karnataka High Court upheld this ban on the prohibition by the government. The petitioners who challenged it argued that the hijab is essential to Islam; the High Court said it is not.

On October 13, 2022, a decision on the appeal to the High Court judgement was reached; however, the Supreme Court bench did not agree on whether the hijab should be allowed in these educational institutions or not. Instead, Justice Hemant Gupta and Justice Sudhanshu Dhulia passed a split verdict, with the former ruling that insistence on wearing any dress is not conducive to the pious atmosphere of schools while the latter held that hijab should be a matter of choice.

With the hijab controversy reeling in India in the background, a 21-year-old woman, Mahsa Amini, was murdered by the moral police in Iran because her hair was visible. Reports suggest that she was, in fact, wearing the hijab, just not in a manner she was expected to a practice often called bad hijab in Iran. The murder of Mahsa Amini made the bad hijab a symbol of resistance in Iran. The Islamic headscarf, thus, came to the centre stage of discourse across the world.

While many argue that the hijab should be a matter of choice and thus the determination of whether a girl should be allowed to wear it to school should be left to her, the argument conveniently brushes aside the paradox of how the hijab is a patriarchal practice which is often imposed on Muslim girls at a very young age, as most patriarchal practices are, under the pretext of choice.

In the split verdict, Justice Dhulias ruling that the hijab should be simply a matter of choice and that disallowing it inside schools would curb the girl child from the benefits of education, doesnt seem to be the correct understanding of the controversy. It mandates the practice of wearing hijab by a constitutional court, thereby endorsing a practice that has time and again proven to be oppressive and exploitative for women and girls.

The Supreme Court of India, in all its constitutional sobriety, should not lose sight of the evils of a practice, which is a double-edged sword indeed, for what may be projected as a choice might as well be the only one available.

In fact, in his dissenting view, Justice Dhulia has elaborated on a South African court judgement, in which the court came to the rescue of a girl who was asked to remove her nose stud at school, an item symbolic of her Tamil Hindu culture, to substantiate why the hijab should be allowed in schools in India.

This comparison between the nose stud and the hijab may be ill-founded as, firstly, they are two distinct symbols worn for completely different reasons. And checked the last time, no girl or woman has been killed for not wearing the nose stud or for wearing it incorrectly.

While Justice Dhulia is conscious of the problems faced by the girl child in India in his dissent and intricately describes the impediments she faces in the journey from home to the school gate, where the doors of education finally open for her and she can realise her dreams, he ignores the fundamentalism that may have fuelled the gates of the school when the protests unravelled in India.

Interestingly, while the judgement has elaborated on several foreign court pronouncements, it has not delved deep into the earliest cases vis--vis the hijab controversy that came up in Trinidad & Tobago in 1994, whereby an 11-year-old student was told by a Catholic school that she would not be allowed to wear the hijab while attending the Catholic-run but state-supported Convent school. Though the girl was allowed to wear a modified uniform, the judgement did not make a sweeping statement about the practice and the judges chose not to close their eyes to the social polarisations and interplay of politics in a constitutional court.

Many experts at the time have deemed the push for hijab at school by fundamentalist groups in the islands as an advancement of the newly constructed image of Muslim womanhood in schools as a means of pursuing their larger goal of adding a distinct Islamic identity to the national social context.

The judiciary in India cannot and should not close its eyes to the rising resistance against symbols of oppression and divisive politics that has picked up in the contemporary world. For, this would indeed be a travesty of justice and the larger goal of securing the rights of women may eventually be lost in the long run.

Sanya Talwar is Editor, Lawbeat. The views expressed in this article are those of the author and do not represent the stand of this publication.

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Opinion | Adjudicating on Centuries of Subjugation: Hijab, Fundamentalism, And The Girl Child - News18