A judgement worth celebrating delivered at the wrong time

 India has been high on tensions among various communities for decades. Millennials in the country must have witnessed communal riots and religious extremism of kinds that might seem implausible for a country otherwise known for its unity in diversity. But as it is a saying in the film industry, the show must go on, as entertainment is a must for the industry.

Appallingly, it is not very different in politics. The recent spectacle presented in the state of Karnataka is nothing but politics of hate being presented with one novel masala. As outrageous as this juxtaposition between the ongoing row and entertainment might seem to many people out there, the fact is that religious fanaticism and hatred are entering innocent classrooms in Karnataka. Call me biassed, but the idea of religiously charged teenagers sounds much more outrageous to me than mere rhetoric. 

It’s patriarchs vs patriarchs

The ongoing Hijab row, as it is being called by the media, is cluttered in itself. General educated masses, willing to look at the situation through a constitutional lens are facing vision blockades due to ideological narratives that are being put up by both sides.

A nuanced understanding of the situation leads us to the fact that irrespective of the issue, it is always the women who end up at the bottom. Or as Dr. Priyam Ghosh, assistant professor at the Vivekananda Institute of Professional Studies and an independent queer rights activist, once said “patriarchy unites more than equality”. These words are again at play as men of two different religious beliefs are fighting over whether or not the already oppressed gender should cover themselves while in the classroom.

A schoolgirl being chased by a mob over the Hijab issue(Courtesy: Scoll.in)

It is also important to note that here the state government has also denied the girls their right to education by alienating them for a practice that was being followed for a long time. Expecting the students to give up on the veil without taking into account where they are coming from is utterly irrational. The idea of a single day transition to realising the religious charlatanism and expecting them to vouch for independence is not only untenable but unscientific and implausible.

Reading between the verdict’s lines

This has been a high voltage one with both sides charged up to take on each other in extra-judicial ways. Appalling news of harassment, hooliganism and subsequent hijacking of the debate by rightists has been doing rounds. In the gloomy environment of extremism, some moderate voices did survive in the Karnataka high court.

The high court’s verdict upholding the schools’ decision to ban the hijab might seem like a match fixed to benefit the bookie, but there is a need to scrutinize the decision from a moderate lens with a liberal outlook. This might be the unpopular opinion among the woke sections, but sometimes the seemingly conservative side might have the constitutional backing with them.

Unlike what we are used to receiving when we think of court verdicts, this judgement has been written with negligible verbiage of that sort making it comprehensive. The order deals with four questions, out of which two were the decisive ones concerning the constitutionality of the hijab as per the constitution. These include the claim that whether the headscarf is an essential religious practice ‘ under Article 25 of the Constitution,’ and if the schools can legally prescribe uniforms against Article 19 of the Constitution. 

(L-R) Members of the three-judge bench CJ Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi (Courtesy: The News Minute)

Still to the disbelief of many, both the claims failed under the law, as the three-judge bench has said that they have found nothing either in the holy Quran or the commentaries on the Quran that suggests that wearing the hijab is an essential practice of Islam.

The high court in answering the first question has relied on the words of Dr. B R Ambedkar who in his famous constituent assembly debate on the codification of Hindu laws said “the religious conception in this country are so vast that they cover every aspect of life from birth to death...there is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend it beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious...”, therefore, it comes to courts whenever there is a question regarding essential practices.

This is something which has come up in numerous cases in recent times including the Sabrimala case and the Shani Singhnapur temple case. In all the cases, the court, while holding the liberal and constitutional view, has delivered the verdict against the petitioners.

Further, in the Sabrimala case, while pronouncing the judgement, Justice D. Y. Chandrachud reiterated that one might claim something to be a part of their religious practice, but it has to pass the test of morality. Along similar lines, the Karnataka high court has underlined the fact that something might or might not be an important part of a religion, but the dignity of citizens is also guarded under the constitution. Therefore, any practice, even if at the core of a religion, cannot be termed essential under the law if it discriminates on the basis of gender.

Moreover, the judges have cemented the order by reminding us that along with the fundamental rights, there are also fundamental duties in the constitution under Article 51A, which might not be legally bounding but should not be ignored. Under the duties, it is mentioned that the “ it shall be the duty of every citizen of India to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic, and regional or sectional diversities; to renounce practices derogatory to the dignity of women. 

Therefore, the judges concluded that “ a religion cannot have an essential practice protected by the constitution that militates against the constitutional protection of dignity and individual freedom provided by the constitution”.

Courtesy: Newsbytes

However, what seemed uncharacteristic of a high court verdict was the scope that the judges found for expressing displeasure and proposing the involvement of some ‘unseen hands’. The bench also questioned the petitioners as ‘the dress code has been in place since 2004’, to which I would propose that the court may renounce their love for the status quo if there is any. Maybe worth a chance to remind the honourable judges of the Karnataka high court that just because some practice is in place for years, should not be allowed to take away a citizen’s right to constitutional remedies.

Stuck in the paradox

Journalist and editor William Davis rightly said “Rather than denigrate the influence of feelings in society today, we need to get better at listening to them and learning from them. Instead of bemoaning the influx of emotions into politics, we should value democracy’s capacity to give voice to fear, pain and anxiety that might otherwise be diverted in far more destructive directions. If we’re to steer through the new epoch and rediscover something more stable beyond it, we need, above all, to understand it.”

In such polarised times, it seems nothing but gloomy to see people choosing and giving arguments not on the ideas of modernity and liberalism but after seeing who is supporting whom. This fiasco highlights the vulnerability of school students against extremist ideas pointing toward the incompetence of our education system, which has failed to inculcate the ideas of secularism, equality and fraternity amongst young minds, leaving them in the hands of radical right-wing groups and clerics ready to exploit them for worse. This strikes a thought that this might be a judgement worth celebrating, delivered in the wrong shadow.

It is distressing that the hijab-saffron scarf row in Karnataka is forcing even the well-meaning voices of modernity and liberalism to defend the regressive practice of covering up young women. Beyond whataboutery of ghoonghats and turbans, Indians shouldn't allow this to become another politically bruising Shah Bano moment that haunts our future.