Home Muslim culture In asking whether the hijab is an ‘essential religious practice’, courts skip woods for trees

In asking whether the hijab is an ‘essential religious practice’, courts skip woods for trees


“[…] Therefore, the government has imposed restraining orders within 200 meters of educational institutions.

This is the Karnataka High Court’s recording of the state’s submissions in its interim order dated February 10 in the case of Udupi Muslim students who approached it to challenge the hijab ban in public schools.

The interim order of the Constitutional Court mainly shows concern about the “situation of public order” that is unfolding.

“The learned general counsel also brought to the attention of the court that there are several counter-agitations involving students who wish to enter the institutions with saffron and blue shawls and other symbolic garments and religious flags,” reports the court.

In this case, his main concern, at least in the interim, seems to be managing the public peace rather than grappling with the constitutional question before him: does the state have the right to ban women from accessing education if they choose to cover their heads or faces?

The state, on the other hand, the natural guardian of “law and order” and “internal security”, having first issued a government decree encouraging the regulation of access to higher education by prescribing uniforms, and then “imposing restraining orders around schools”, exhibited no such pains or anxieties.

So, as often happens in situations where the immediate objective is to force a settlement between unequal aggressors, the interim order treats all parties as equal culprits and insists on equal restraint. The particular roles of stakeholders and the state remain unexplored.

In fact, the Constitutional Court put the question the other way around. To be clear, it is women who are in court challenging the actions of educational institutions and the state government that affect their access to education. The state did not come to the constitutional court to challenge the hijab. Thus, the subject of review should be the state action, on its own merits, which is the subject of the motions for an order. Rather than examining the action of the state when it seeks to regulate access to education, and the totality of the circumstances, when it might be deemed reasonable to do so, judicial and public discourse has makes the choice of women an object of investigation.

Muslim women in hijabs take part in a candlelight march during a protest rally against Karnataka’s ‘hijab’ ban, in Kolkata on February 11, 2022. Credit: PTI Photo/Swapan Mahapatra

The issue of regulating access to education needs to be seen in the context of broader issues around education as a public good. What degree of state control is reasonable in shaping the culture of public education? Should the state intervene to balance the majority tendencies? Should school lunches tend towards vegetarianism? Shouldn’t schools only employ Dalit cooks as a public policy and insist on fraternal meals? Should there be greater stakeholder involvement in promoting a culture of democratic public education, even on issues such as the time frame for returning to school after the long period of COVID-19?

An unimaginative frame

However, this is not the set of questions that this issue is bludgeoned with. The emphasis is curiously placed on the hijab, and the interim order poses the problem in terms of a single constitutional question: is it an “essential religious practice” or not?

This rather unimaginative framing reminds me of the fascinating book by Saba Mahmood The politics of godliness, an ethnographic account of a “movement of piety” of Islamist women in the mosques of Cairo, Egypt. Mahmood writes about the belief among some of the women that in order to become good Muslims (to be able to follow “essential religious practices” in a real sense), one must first “discipline oneself” and become more aware, which They did. by adopting pious practices. Mahmood traces how external action on the body (such as the veil) was meant to cultivate the internal self in such a way that it naturally tended towards religion. She takes the example of a runner preparing for a marathon, who finds ways to discipline his body. Thus, the veil according to some of Mahmood’s subjects was an essential practice towards an essential practice.

Relevantly, Mahmood also examines the agency in such a performance of godliness. It is a very deliberate act of disciplining the outer self, albeit in the service of religion.

Liberal feminism typically locates agency and choice in actions that resist conservative structures and discourses. On the other hand, analyzes of Islamic movements sometimes argue that the resurgence of Islamic forms is an act of action and reflects social protest against the failed modernization projects of postcolonial Muslim regimes. Mahmood’s work attempts to break out of this duality and examine women’s agency in performing everyday and other acts of dress.

She also says that norms are not always “consolidated or subverted, but also executed, inhabited and experienced in various ways”.

While on the one hand, the ethnographic accounts of Muslim societies tell of the same diversity in the experience of faith as with other eclectic religions, as well as the constant individual negotiations with the dictates of religion (Allah does not would he really care if I did that?), as being bound to scripture and therefore less democratic and flexible. An idea that Islam is perhaps more “Semitic” and less “Indian”.

Be that as it may, while the interim order refers to a later, and more in-depth examination, the question of whether wearing the hijab in class is an essential religious practice in Islam (in my experience, even Semitic religions aren’t as specific as this), it also bars seemingly equalized offenders from “wearing shawls, sashes, hijab, religious flags, or the like in the classroom, until further notice.”

Thus, it curiously promotes the wearing of saffron shawls and the carrying of religious flags to “potentially essential religious practices” in Hinduism, and corresponding to the wearing of the hijab.

The parallel of French secularism

It is often said of French secularism that by constituting “secular public spaces”, it seeks to exclude only what is “foreign”, or extreme, while welcoming all the everyday cultural symbols of French Catholicism.

Talal Asad in his work on French secular culture usefully specifies:

“Secularism has many origins, and I find it useful to start the story at the beginning of modern times. At the end of the religious wars of the 16th century, the states of Western Christianity adopted the cuius regio eius religio principle (the religion of the sovereign is the religion of his subjects).[…] I want to suggest that the French secular state today somehow respects the cuius regio eius religio principle, even if it disavows all religious allegiance and governs a largely irreligious society.

Thus, the hijab worn by Muslim immigrant women is considered a religious sign contrary to the secular character of the French Republic, while “religious schools subsidized throughout the country, diocesan associations, special provisions in Alsace-Moselle, religious associations that legally receive donations and hold property, as well as religious gatherings that have the right to perform funeral rituals in public spaces or to march in funeral processions on public roads, all have a political presence -legal in the secular structure of the French Republic.”

Representative image of a Muslim woman wearing a hijab near the Eiffel Tower in Paris, France. Photo: Reuters

Indian secular culture also welcomes everyday markers of religion and caste almost as a default position. However, he is now beginning to disapprove of certain markers that he increasingly perceives as ‘outsider’, or ‘extreme’, and often both, and in conflict with national values.

By way of illustration, while defending the right to wear a headscarf at school in this brief motion, the lawyer gave the example of his own son, who apparently wears a namam in school because he was a Brahman. He had thus drawn up an explicit equivalence in terms of essential religious practices, inviting the court to examine (or restrict) all the benchmarks in the meantime. The Court, in its wisdom, chose to prevent only markers that do not by default occupy public cultural spaces from occupying dominant cultural positions.

Shahrukh Alam is a lawyer practicing in New Delhi.