The Fallacies of the Hijab Ban

The Karnataka High Court upheld the ban on wearing of the hijab in classrooms, a ruling that could drastically fuel the ongoing marginalization of the minority community. The question therefore arises how far is the judgment, or for that matter the ban on the hijab, free from the fallacies.

The recent Hijab controversy, as you may call it, is not just about ‘hijab‘, it never was. In the Article 25 of the Indian Constitution, it is explicitly stated that “all persons are equally entitled to freedom of conscience and the right to freely practice, profess and propagate religion, subject to public order, morality and health”. Apart from being a democracy, India has always boasted about being a flag bearer of a unique form of positive secularism which remains very different from the Western Secularism (the separation of the Church and State). With the increasing intolerance in the Indian society, a piece of clothing of the Muslim woman has invoked hatred and led to a nationwide debate. When all other religious symbols are allowed in the public spaces, why is it that ‘hijab‘ became a matter of controversy?

The Muslim woman has always been a target of this increasingly polarized society, they are often portrayed as ‘‘oppressed’’ and ‘‘backward’’, which often evokes vitriolic reactions against both Muslim men and Islam. Such images of Muslim women as victims are also common in popular contemporary discourse in India. Colonialists describe her as exotic and sensuous, the proto-feminist pities her and wants to rescue her from her ‘inferior culture’. The Muslim woman is thus ‘the damsel in distress’ locked up in her cage waiting to be rescued by whoever was narrating her story be it the Orientalist, the Colonialist or the feminist. She was and she is, the ‘Other’ who is seldom asked about her own views but who is often judged. Thus divorcing the individual agency of their appearance and their religious practices, so as to discredit their views and create a discourse that establishes Muslim men as “uncivilized” while Muslim women as “oppressed“. Hate, bigotry and apartheid are evident here.

The fact that the upholder of the fundamental rights —the state high court — has also upheld the ban has brought into light the many fallacies of the ban.

The court has passed the judgment that ‘Hijab is not an essential part of Islam‘, but the statement itself has many fallacies. Let’s for the sake of argument say that hijab is not an integral part of Islam, but does the constitution specifically say that only ‘essential’ practices of any religion will be allowed? The court being the upholder of the constitution made an unconstitutional statement making it the first fallacy of the ban.

The state of Karnataka argues about uniformity in the dress in schools and colleges. The fact that they are going against the very context of India’s republican history and is trying to invoke a larger principle, the principle of uniformity built into the French construction of secularism, laïcité – a negative form of secularism – is the second fallacy of the ban.

The Hijab-proscribing schools and colleges as well as government institutions have always made at least one sartorial exception based on religious grounds – the Patkas that the Sikh boys and men wear. In fact, the Sikh turban has been allowed worldwide in global institutions and even in various armies across the world. It has in fact, challenged the shibboleths of laïcité globally. Therefore, the discriminatory practice where Patkas and turbans will be allowed but hijab remains banned becomes the third fallacy of the ban.

The discourse around the Hijab ban has raised concerns that the Hijab may not be a conscious choice of Muslim women who are far from ‘modernity‘. But this argument again completely ignores the fact that the right to Hijab is simply an extension of the right to bodily autonomy and reduces modernity to mere clothing. Also, the argument that the choice of a woman to expose her body is somehow considered inherently more independent and more ‘modern’ than her choice to cover it up is the fourth fallacy of the ban.

The argument that the ‘Hijab is not an essential religious practice‘ remains very contested and debated, as what are the grounds on which this has been established? If it is being said on the fact that many Muslim Women choose not to wear it, doesn’t mean it isn’t an essential practice. Let’s take an example of ‘Patkas’, many Sikh men choose not to wear it but it didn’t become a reason to prevent others from wearing it. There are married Hindu women who choose not to wear ‘sindoor‘ or ‘bindi‘ but those who do haven’t been singled out for it nor have been targeted. But when Hijab is banned by a state and the High court upholds the ban, the bigotry of the government and the compromised state of the judiciary is out in the open for everyone to see.

On one hand the apex court cancels the blanket ban on something as trivial as firecrackers for Diwali celebrations, but on the other hand a major religious practice followed by a large number of Muslim woman throughout the world faces a ban in a state in India. The country which has time and again allowed all sorts of religious symbols in public spaces, apex courts and even in the Parliament suddenly has a problem with Hijab.

This sudden vitriolic reaction towards Hijab therefore makes it very evident that it isn’t about Hijab but is a clear act of hostility against Muslims, one that intends to further marginalize an already vulnerable group.

Sadaf Jawed is pursuing PhD. in History from Jamia Millia Islamia.

Edited by: Zaina Shahid Khan