The Genocide Watch recently predicted a brewing genocide in India. One such sign could be seen in Karnataka’s Udupi district where for the last month, a Government College has been in news for banning students from wearing hijab inside the classroom. The issue is not only limited to hijab, speaking Urdu and doing salam (which ironically means peace in Arabic) has also been banned.
What Does the Law Say?
Though the present matter is not only limited to the issue of hijab, the debates around banning hijab did find momentum. I have discussed the law in India on hijab before. I will briefly discuss it again for the benefit of the readers. The law is surprisingly quite clear on the issue of headscarf aka hijab i.e. protection under Article 25. Also, India imbibes the doctrine of essential practices wherein the protection to ‘religion’ under Article 25 includes all rituals and practices that are essential to religion. Hijab, interestingly, both theologically and empirically fulfils this requirement too. Now let’s analyze how the Indian courts have dealt with the issue at hand.
In 2015, CBSE banned the head covering and full-sleeve shirts for the AIPMT. The mandated dress code was challenged. The Kerala High Court in Nadha Raheem v. CBSE allowing hijab observed: “it cannot be ignored that in our country with its varied and diverse religions and customs, it cannot be insisted that a particular dress code be followed failing which a student would be prohibited from sitting for the examinations… for reason of their wearing a dress conducive to their religious customs and beliefs.”
The next year in 2016, in Amnah Bint Basheer case, the prescription of dress code by CBSE for AIPMT was again challenged. The Kerala High Court held that the right of women to have the choice of dress based on religious injunctions is a Fundamental Right protected under Article 25(1) of the Constitution of India.
In India, the judgment of one high court has persuasive value for another high court. More so, there is no precedent on the issue of hijab from the Supreme Court of India. Law, as discussed, is clear. Then where does the issue lie? The issue, even legally, is deeper than discussing some case laws.
A Deeper Question
The debates around secularism in India have not been new. The debate, in my opinion, is fourfold and all sides make compelling arguments. The first argument cites Nehru and Ambedkar and calls Indian Constitution an intrinsically secular document with the insertion of the term in the Preamble later by Indira Gandhi during the Emergency as of little value considering the nature of the Constitution as always secular. The other three arguments question whether India is truly secular.
Let’s face it, a big chunk of Indians today call Indian Constitution “minority appeasing”. No, India is not changing. These sentiments were always present though not this loud. These sentiments curate the second argument of the debate. In Constituent Assembly Debates, one will find the same language that has become the norm of the day today. Fears of losing country to “foreigners” and “communists”. Members (read Ram Chandra Gupta, Jaspat Roy Kapoor, Jagat Narain Lal, et al) present Hindutva historical perceptions to justify a strong Centre. Today, when the tides are even stronger for a Hindu Rashtra, these discussions are public. Why Article 25, 29, and 30? Why was the word “secular” not inserted in the Constitution in the very first place? Clearly, that was a deliberate move. And of course, the conundrum of the Uniform Civil Code.
Now comes the third argument. This side argues that the Indian Constitution is not as perfect as it is projected. The Constitution gives concessions to one minority and not another (see the specific protection of wearing a kirpan in Article 25). It is argued that the Constitution carries signs of majoritarianism. The insertion of Article 48 (cow protection), Article 25 (b), Article 343, 351 (special preference to Hindi and Sanskrit), et al. It does not end here, apart from the grundnorm, it is argued that the aversion to Muslim beards but a sense of pride in Sikh beards, particularly in Army; the normalization of poojas in ‘secular’ government institutions, from the judiciary to the executive—India, it is argued is not actually secular after all. India is deeply religious albeit it normalizes only those religions and practices considered as its own. Clearly, Islam and Christianity do not cut the mark.
Now, coming to the fourth argument in the Secularism debate. This side construes an argument that the idea of secularism is fundamentally negative and requires a complete separation of state and church. As such India, which adopts a rather positive approach of secularism and is interventionist only as an exception, needs to adopt the negative or the dictionary idea of secularism.
One may say that the answers to these captivating arguments lie in the history of India. Sadly, one finds intellectual dishonesty in the legal debates and seldom reflections from our own history.
Interestingly the present hijab debate will be different from anything that our apex court has tackled before if the matter reaches that point. It is different from the beard controversy, triple talaq, or maintenance. There are no sectarian differences on the clear mandate of hijab for Muslim women. Even the Sunnis and Shias will come together on the issue of hijab. In this background, India must remember its history before settling the controversy around hijab which shall consequently elucidate India’s contemporary stand on the secularism debate. But before that, India must remember that the Indian idea of ‘secularism’, or however one terms the concept of supposed equal treatment of all religious communities, is not a concession to the minorities in India. It is the very requirement for India to survive as a nation.
These realities of Indian demography, history, and its “essentially undemocratic soil” as Ambedkar puts are the reasons behind the nature of the Indian Constitution as we see today particularly that of ‘secularism’. Today, India, standing on the verge of writing its history with the same ink Germany wrote not even a century back, and of Rwandan horrors which are hardly three decades old, those who are responsible for today’s India, particularly the custodians of the Constitution, the burden is heavier than before to clear the air around the enigma of Indian secularism and strong action thenceforth. Else, with the incessant suppression of minorities and the short-sighted and weak idea of akhand bharat, India is all set to write its own gory future.
Nabeela Jamil is an alumnus of the Faculty of Law, Jamia Millia Islamia. She practices law in Delhi.
