Hijab Ban Verdict And The Need To Prioritise Girls’ Fundamental Right To Education

Yesterday, the two member bench of the Supreme Court handed a split verdict on the appeal against the Karnataka High Court judgement upholding the hijab ban by educations institutions in the state.

Those of us who have been following the case in the Supreme Court expected Justice Hemant Gupta to dismiss the appeals challenging the decision of the Karnataka High Court. It was no surprise to anyone that his judgement dismissed the plea by the young women that they should be allowed to wear hijabs in the classroom.

However, the judgement of Justice Sudhanshu Dhulia gives hope.

The question of ‘essential religious practice’

As reported here, when the young women filed a petition before the Karnataka High Court seeking permission to wear the hijab in the classroom, the High Court dismissed the petition by stating that unlike the turban in the Sikh faith, the hijab was not an “essential religious practice” of the Islamic faith, and therefore they were not exempt from the guideline issues by individual educational institutions.

While ‘hijab’ is mandated in the Quran, there are different interpretations on what ‘hijab’ actually means. The High Court, therefore, should not have based its judgement on whether or not the hijab is an “essential religious practice” or not- if some women consider it an “essential religious practice”, it is not for the High Court to decide that their interpretation is not the right one.

Instead, the High Court should have realised that by upholding that hijabs were not permitted in the classroom they were forcing many young women to choose between following the dictates of their faith and getting an education.

There is little to be gained by creating a “hijab ya kitab” (hijab or book) binary- in a patriarchal country like India, young women already have to navigate complex minefields, without the system adding yet another level of complexity.

Many people who had absolutely no skin in the game, claimed that they were trying to free young women from a patriarchal society that forced them to wear a hijab. False equivalences were drawn with the anti-hijab protests in Iran to underscore the point that hijabs should be shunned.

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So from some of the things Justice Gupta said, one had feared that the judgement too would be along similar lines, and the hijab ban would be upheld.

Justice Sudhanshu Dhulia: what ‘choice’ means

It is here that the judgement of Justice Sudhanshu Dhulia gives hope.

Justice Dhulia dismissed the need to establish whether or not a hijab was an “essential religious practice” and stated categorically that “when protection is sought under Article 25(1) of the Constitution [which states that all persons have the right freely to process, practice and propagate religion], it is not required for the individual to establish that what he or she asserts is an essential religious practice. It may or may not be a matter of essential religious practice, but it still is, a matter of conscience, belief, and expression.”

“If she wants to wear hijab, even inside her class room, she cannot be stopped, 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, and in those cases, her hijab is her ticket to education.”

By stating that, Justice Dhulia showed an astute understanding of the practical meaning of “choice”. When we make choices, we always choose between the alternatives that are available to us. For many young women (though certainly not for all) the choice often is “don the hijab and go to school” or “refuse to wear the hijab and drop out of school”. When schools/ colleges ban the hijab, the young woman doesn’t get mysteriously “empowered” to shun the hijab- often she just ends up dropping out of school/ college.

The focus should be the education of the girl child

Justice Dhulia then went on to add: “But the thing that was most important in my mind while deciding this case was the education of a girl child. It’s common knowledge that already a girl child, primarily in rural areas and semi-urban areas, has to face a lot of difficulties. She has to help her mother in daily chores, in cleaning and washing, before she goes to school. There are other difficulties as well. What I ask is are we making her life any better?”

This part of the judgement will be quoted for many years to come, because it strikes at the heart of what the judicial system should do- keep the interests of the most vulnerable people at the center. As Justice Leila Seth says in her book, Talking of Justice: People’s Rights in Modern India, “treating persons who are in an unequal situation equally does not do away with the injustice. This situational imbalance has to be rectified first.” While educational institutions can and must uphold their rules, if these rules deprive young people of an education, the rules must be overthrown.

Even if people think that the hijab is a patriarchal construct, the way to “liberate” women is by enabling them to get an education so they are economically and emotionally independent, and therefore empowered to take decisions which may go against societal expectations. Anyone who genuinely cares for the empowerment of women should oppose the hijab ban, as Justice Dhulia pointed out.

The issue is still to be settled, so we have fingers crossed

In an ideal situation, one would have hoped that the Supreme Court bench would have dismissed the High Court judgment that upheld the hijab-ban. However, in light of the many pronouncements that go against the fundamental rights of women and minorities, the judgement handed down by Justice Dhulia is a ray of hope. As Harper Lee wrote in her book To Kill a Mockingbird, after Atticus Finch kept the jury out for hours in the trial of a black man accused of raping a white woman:

“You think about that,” Miss Maudie was saying. “It was no accident. I was sitting there on the porch last night, waiting. I waited and waited to see you all come down the sidewalk and as I waited I thought, Atticus Finch won’t win, he can’t win, but he’s the only man in these parts who can keep a jury out so long in a case like that. And I thought to myself, well, we’re making a step- its just a baby step, but it’s a step.”

This judgement is a baby step, but it holds hope.

With a split verdict, the case will now go to the Chief Justice, who will give the final verdict on whether educational institutions in Karnataka can enforce a hijab-ban. Justice Gupta will retire at the end of the week- this may be his last significant judgement.

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