Author: Kumar Swati
“Nobody forced us to wear our headscarf, nobody will force us to take it off,” said a French activist when the French football association banned headscarves. I am a nobody, but let me bring forward a popular quote from Nobel Peace Laureate Tawakkol Karman when asked about her Hijab by journalists and how it is not proportionate with her level of intellect and education, Tawakkol Karman replied politely: “Man in the early times was almost naked, and as his intellect evolved, he started wearing clothes. What I am today and what I am wearing represents the highest level of thought and civilization that man has achieved and is not regressive. It’s the removal of clothes again that is regressive back to ancient times.”
The simple headscarf has suddenly made a magnificent entry in the never-ending argument between the left and the right. Despite the fact that women from all communities wear this type of clothing, Muslims are currently at the forefront of the conversation. We must not overlook the issue of what a Muslim woman prefers in terms of the headscarf, despite the fact that public opinion has primarily gotten fixated on the conflict between the right of religion and the right of institutions to impose a dress code.
It is a popular notion that women wear hijab due to their conditioning and under patriarchal oppression. A woman wearing a hijab is seen as a symbol of oppression that needs to be emancipated. No one ever speaks to them to find out what their personal views are. If a girl wearing hijab is due to her conditioning, then encouraging girls to cook is also part of our conditioning, making them believe that they need to serve their husbands and in-laws are also conditioning, expecting them to dress up in a saree for Diwali, or wear sindoor for a festival is also conditioning, women wearing bangles for certain days after wedding is a conditioning, women not allowed to set out of the house for 40 days postpartum is also conditioning, girls not allowed into the kitchen during their period is conditioning. We are who we are as a result of our surroundings and conditioning.
Whereas Karnataka high court said in his verdict, “The school uniform ceases to be uniform. There shall be two categories of girl students viz., those who wear the uniform with hijab and those who do it without. That would establish a sense of ‘social-separateness’, which is not desirable. It also offends the feel of uniformity which the dress code is designed to bring about amongst all the students regardless of their religion & faith.”
The debate over whether the headscarf is an essential religious practice or a fundamental right to religion centers on whether Muslims have the right to wear them or are required to do so. This issue is complicated, and it is first necessary to comprehend it in all of its complexity. The only clothing that is permitted according to the Quran is modest, and the genitalia and breasts must be covered (Surah 24:31). The Hadiths expressly mention the Hijab.
But for a variety of reasons, the Hadiths continue to be a contentious source of law, even among Muslim jurists. Although the Triple Talaq was based on the Hadiths, the Supreme Court overturned it when the hadiths were put to the test in the case involving it, citing their contentious nature. The Hijab-supporting argument based on Hadiths is unlikely to be persuasive for the same reason.
As stated in the Justice Puttaswamy v. Union of India ruling, the problem needs to be looked at from a wider viewpoint of personal privacy. The right to privacy is supported by three ideas: boundaries (the arbitrary lines we establish to protect our autonomy and integrity), integrity (the right to a healthy body and mind free from harm), and bodily autonomy (my body, my choice).
Choices that are the result of our autonomy can be arbitrary, need not be justified, and remain unassailable unless they adversely affect laws that express compelling state interests (such as public health and crime prevention) in a way that is consistent with Part III of the Constitution (fundamental rights). Since dignity and privacy are closely related in the eyes of the law, a woman's right to clothing is unassailable whether at the hands of the state or of third parties, unless it is in conflict with the aforementioned notion of compelling state interests.
The Sexual Harassment (Prevention, Prohibition and Redressal) Act of 2013 is the best example of this, as it states that comments made about a woman's clothing, even those that are not sexually explicit, can still be considered sexual harassment because they implied a level of proximity to the woman and the right to violate her boundaries and threaten her integrity without the woman's consent. The law does permit employers, including educational institutions, to set clothing standards.
However, that clothing code must support rather than compromise a woman's right to preserve her modesty. The law, or for that matter anyone, cannot and should not stipulate otherwise if a Muslim girl believes that covering her head and neck is modest, much like covering her breasts and genitalia is modest for most women. This is the crux of the legal and human rights debate surrounding the hijab.
Additionally, because the Hijab controversy arises from the Justice Puttaswamy ruling, the matter must be decided from scratch and cannot be addressed in previous case law, such as the decision in Bijoe Emmanuel v. State of Kerala, which was rendered before privacy became such a crucial aspect of our human rights jurisprudence.
Whatever one's point of view, if we simply look at the issue from a religious perspective, we would be doing a great disservice to the cause of emancipating women, especially those from minority groups. Religion continues to be a shaky ally in the effort to resolve the debate because it does not traditionally have the distinction of being consistently tolerant of women's rights.
In a society where girls frequently give in to requests about their appearance demanded of them at home and in the community only to access education, making opposing demands at the educational institution jeopardizes their right to self-development and education. Let's not lose compassion for the Muslim girl who is striving to be the best she can be, regardless of how we decide to resolve this situation.