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Karnataka's hijab controversy explained

  • The issue came to light when a group of Muslim girls belonging to government Pre-university College in Udupi protested against being sent out of the classes for wearing hijab in December 2021.
  • The issue soon took a communal turn, with Hindu students in different Karnataka colleges starting a counter protest by wearing saffron clothing and preventing hijab wearing girls from entering colleges.
  • According to a news report the issue was not a contentious issue but was created and subsequently communalist and given a communal colour.
  • The best course of action would have been a friendly discussion between the leaders of the community to sort the matter at local level, however such a negotiated settlement was not attempted or had failed because some of the parties or any of them wanted to exploit the matter.
Constitutional principles and the court’s view
  • The liberty to wear hijab has been claimed as a cultural and religious right I’m not on the basis of an unconstrained autonomy of an individual‘s rational choice.
    • The idea of decisional autonomy of a person by focusing on the freedom of conscience guaranteed by Article 25 of the Constitution was advocated before the Karnataka High Court.
  • The Supreme Court in Bijoe Emmanuel and others vs. State of Kerala (1986), ruled that even if a religious belief or practice does not appeal to anyone’s reason or sentiment it would attract the protection of Article 25 if it is genuinely and conscientiously held as part of profession or practice of religion.
  • It has been argued that the right to wear the hijab in government educational institutions could be granted on the basis of an individual's conscientious belief without subjecting it to the essentiality test where belief is primarily ascertained with reference to community indoors doctrines of religion.
    • The essentiality test was laid down by the Supreme Court in Shirur Mutt case (1954) and in Srimad Perarulala vs. state of Tamil Nadu (1972).
  • However the concerns have been raised that dissent in religion is often construed as blasphemy and is punished, hence there is need for judicial intervention in a secular democracy to protect individual rights within a community.
    • Otherwise the freedom of conscience available to reformists within religious groups to challenge outdated doctrines and authoritarian edicts would be seriously compromised.
    • John Rawl’s idea of rational reversibility gives believers the right to rational evaluate and revise existing conceptions of faith.
  • In Sabarimala case, Justice DY Chandrachud while agreeing with the anti exclusion principle which limits that on any of religious groups in situations where these groups are blocking access to basic goods held that where these religious practices cause the exclusion of individuals in a manner which impairs their dignity, freedom of religion must give way to the overarching values of liberal constitution.
  • Horror it is also argued that if the right to dissent from within a religious group is entitled to judicial protection under Article 19 and 25, the right to follow one sweet would also qualify for the same protection when it is sought to be curtailed from outside by another religious group or the state.
    • For this reason, the freedom to wear the hijab in public or in government educational institutions cannot be denied as it does not affect any legitimate state interest or security, public order, health or morality.

Positive and Negative liberty 

Isaiah Berlin mentions two concepts of liberty, freedom from external constraints is called negative liberty while the freedom to pursue one’s choices with full autonomy is termed as positive liberty. If the court upholds the Muslim students positive liberty to wear the hijab, their negative liberty can still be questioned because coercion does not always take the form of physical threats or intimidation. An individual’s free will can be subverted through propaganda, indoctrination or advertisement.
Demoralizing the psyche of Indian Muslims
  • Indian Muslims have been at the receiving end of frightening harassment that has affected them psychologically and curtailed their freedom in the democratic activity.
  • Social exclusion has to a large extent been effected through extreme violence including brutal mob lynchings in the name of cow protection and demonisation campaigns that accuse Muslims of resorting to innovative forms of jihad against other religions to either lure them into marriage, infect them with disease, out populate them, gobble up their lands etc.
  • The vilification of Muslim women to forms a significant aspect of this community beating. Malignant tech tools like ‘Sulli Deals’ and ‘Bulli Bai’ apps have been used with gay abandon to sell and humiliate them on internet.
There is a need to focus on upliftment of socially and economically backward sections of the community and focus on women education to realize the true meaning of a secular and democratic country.


POSTED ON 26-02-2022 BY ADMIN
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