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The interpretative answer to the hijab row

Colombo, Sri Lanka - April 13, 2010: Muslim women walk on the beach in Sri Lanka. A majority of Sri Lanka is Buddhist, but because of trade routes, Islam was introduced and can be found in many Southern Communities.

Colombo, Sri Lanka - April 13, 2010: Muslim women walk on the beach in Sri Lanka. A majority of Sri Lanka is Buddhist, but because of trade routes, Islam was introduced and can be found in many Southern Communities. | Photo Credit: ertyo5

A number of Muslim girl students in my home town of Udupi, Karnataka, have been refused entry into their college. The administration objects to them covering their heads with a hijab. The girls invoke the protection of the Indian Constitution, whose preceptor Dr. B.R. Ambedkar once wrote, “the world owes much to rebels who would dare to argue in the face of the pontiff and insist that he is not infallible”.

Udupi has a proud tradition of having rebels who have challenged established norms that have not stood the test of reason. In the 16th century, priests at the Krishna temple in Udupi prevented a lower caste devotee, Kanakadasa, from entering it. He refused to go away and began composing and singing kirtans from the courtyard outside, while waiting to secure a sight of the deity. Even after many days, the priests did not relent but a miracle intervened. The idol of the deity which until then faced eastwards, miraculously turned 180 degrees to face west, and then broke open a rear wall to create a window through which Kanakadasa could have his darshan. Even today all devotees have their first sight of the lord through Kanakadasa’s window.

A focal point

Thus, it was only historically apt that one of the first great religious cases interpreted by the new Supreme Court, under the new Constitution, came from Udupi. In the Commissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt case, or Shirur Mutt , of 1954, the Court ruled, “….what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.” Ever thereafter, the judgment in Shirur Mutt has remained the focal point of constitutional discussion on religious freedoms. The “essential religious practices” test appeased traditionalists by ‘assuring them that the Court would be sympathetic to their respective religious faiths. It also supported state-sponsored reform by leaving one agency of the state — the judiciary — with the power to determine and pronounce upon (perhaps, transform) religious practice and belief’.

‘Religious practice’

Since it was first propounded, the “essential religious practice” test has been problematic. How is the Court to determine what an ‘essential practice’ is? Should it ‘rely on religious leaders’? Should it ‘call for evidence’? Should judges ‘pursue these questions on the basis of their own research’? Justice D.Y. Chandrachud in the Sabarimala case, bemoaned, “... compulsions nonetheless have led the court to don a theological mantle. The enquiry has moved from deciding what is essentially religious to what is an essential religious practice. Donning such a role is not an easy task when the Court is called upon to decide whether a practice does nor does not form an essential part of a religious belief. Scriptures and customs merge with bewildering complexity into superstition and dogma. Separating the grain from the chaff involves a complex adjudicatory function. Decisions of the Court have attempted to bring in a measure of objectivity by holding that the Court has been called upon to decide on the basis of the tenets of the religion itself. But even that is not a consistent norm.”

In the case of the hijab, there is no doubt that an observant Muslim woman might insist that the following verses from the Koran mandate her to keep her head covered. Chapter 33, Verse 59 says “ O Prophet! Enjoin your wives, your daughters, and the wives of true believers that they should cast their outer garments over their persons (when abroad): That is most convenient, that they may be distinguished and not be harassed.” Chapter 24, verse 31 is more explicit in decreeing, “And say to the believing women that they should lower their gaze...; that they should not display their beauty and ornaments except what (must ordinarily) appear thereof; that they should draw their khimār ... and not display their beauty except to their husband, their fathers, their husband’s fathers, their sons, their husbands’ sons, their brothers or their brothers’ sons, or their sisters’ sons, or their women....”

A possible fallout

Questions of uniforms never troubled my five years of college in Udupi in the early 1980s. There was no requirement of uniforms. Subsequent administrators, in the 1990s, may have decreed uniforms to prevent competition amongst fashion-conscious teenagers. Today, there is no one uniform code which is mandated throughout the State. Individual colleges do decree uniforms, but not necessarily the manner of wearing them. An unfortunate side-effect of the current controversy may well be a State administrative order decreeing uniforms for all college students throughout the State of Karnataka. That to my mind would be a killjoy response of an administration that prioritises uniformity over diversity.

In the absence of a statutory uniform code, a court may well ask whether a head covering mandated by some religions, when worn in addition to the uniform, violates any legal tenet. Would the same standards that banish a female hijab apply to a turban worn by a male Sikh student? Can government colleges deny education to students who are seen to be violating a uniform code? Is the hijab or even a full covering in any manner violative of the process of imparting education? Can a government committed to female education deny education to those it deems improperly dressed? Should implementation of a dress code be prioritised over imparting education to all that seek it? These and other like questions will probably soon engage the attention of a constitutional court. That court may do well to heed Justice R.F. Nariman’s dictum in the Sabarimala review which says, “... After all, in India’s tryst with destiny, we have chosen to be wedded to the rule of law as laid down by the Constitution of India. Let every person remember that the “holy book” is the Constitution of India,... ”

Competing rights

The interpretative answer to the hijab row, from the “holy book”, might lie in another case from Udupi district. Three years after Shirur Math , in 1957, the Supreme Court, in Sri Venkataramana Devaru vs State of Mysore , had to examine whether the exclusion of a person from entering into a temple for worship is a matter of religion according to Hindu ceremonial law. The Court held “... that the right of a denomination to wholly exclude members of the public from worshipping in the temple, though comprised in Art. 26(b), must yield to the overriding right declared by Art. 25(2)(b) in favour of the public to enter into a temple for worship. But where the right claimed is not one of general and total exclusion of the public from worship in the temple at all times but of exclusion from certain religious services, they being limited by the rules of the foundation to the members of the denomination, then the question is not whether Art. 25(2)(b) overrides that right so as to extinguish it, but whether it is possible-so to regulate the rights of the persons protected by Art. 25(2)(b) as to give effect to both the rights” Venkataramana Devaru points to the Court’s endeavour to harmonise competing rights in a way that both were given effect to. In the hijab case, the courts will be called upon to protect an essential religious practice, in a manner consistent with imparting education in an orderly fashion.

It is not the domain of this article to prophesy the ultimate outcome of the ensuing legal battle. The protesting girls may, however, take heart from another Kanakadasa-like episode from the late 1970s. Jon Higgins, an American scholar of music, was so proficient in Carnatic music that he was called Higgins Bhagvathar. When he visited the Udupi Shri Krishna temple, he was denied entry because of his white skin. He stood at the gate and sang in chaste Kannada the Vyasatirtha composition, ‘Krishna nee begane baro’ . He was permitted entry immediately, possibly to avert another intervention from the deity. The moral I take from this episode is that unthinking enforcers of any kind of dogma will have to ultimately yield to a harmonious faith in a “holy book”.

Sanjay Hegde is a Senior Advocate designated by the Supreme Court of India


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