New Delhi: On the verdict of the Karnataka High Court upholding ban on hijab in educational institutions, constitutional experts and legal scholars have said that banning hijab lies beyond the state’s power as lawyers and judges have little knowledge about religious matters.
The British Broadcasting Corporation (BBC) in its latest story on the issue quoted senior Indian Supreme Court lawyer Rebecca John as having said while addressing the Karnataka High Court, “You’re entering into theological terrain that lawyers and judges have little knowledge about.”
“When it comes to faith, there’s no uniformity in religious practices – you may come under the umbrella of a particular religion but everybody has their own distinct flavour,” Ms John says.
“Even the hijab is symbolic to many things for many kinds of people. The easiest way to condemn it is to say it’s oppressive but across the world, it is used as a symbol of resistance. So, we can’t define what is essential in absolute contours – people adopt it for different reasons.”
By doing so, she adds, the court is stripping women of their agency, reducing complex and intimate choices to simple binary ones.
The Indian Supreme Court first used the term “essential part of a religion” in 1954, observing that a practice is essential if removing it causes a “fundamental change in the religion”.
But over time, she says, Indian courts have started using the doctrine to do the “opposite” that regulates these matters themselves.
“So, the doctrine morphed from ‘essentially religious’ to ‘essential to religion’,” she says.
Who are we to say a woman’s choice to wear the hijab is not well thought out?” Ms John asks. “The court should’ve considered the agency argument instead of focusing only on the essentiality test.”
“If you must implement uniforms, then it should be across the board. You can’t allow someone to wear a bindi or have sacred threads around their wrist. When you insist on it only for one class of people, that’s discriminatory,” she said.
Legal scholar and Professor, Deepa Das Acevedo, says, “This empowered religious communities. What lay beyond the state’s power to regulate or change would, effectively, be determined by the religious communities themselves.”
A three-judge bench in the southern Indian state of Karnataka upheld a government ban on the headscarf in schools and colleges on the grounds that wearing it was not “essential” to Islam. Web Desk
