Introduction

Life is a blend – you create dissolving in it by what you think, see, perceive and believe. Everything we hear is an opinion, not a fact and everything we see is a ‘Perspective’, not the truth. The time has not changed, rather it has transformed like a piece of coal into a pinnacle of paragon, refracting & reflecting the modern dews of development. We live in the 21st century, in the fourth wave of feminism, where modernization & western progressive ideology has touched nearly every sphere of the global world including politics, economics & financial systems, societal structures, and psychology. The females in the modern world are fighting toe to toe, standing head-to-head, and walking hand in hand in making the life of humans on this earth relatively more complete. Women are the real architects of the home & the world. Think and introspect, we are evolving every day, but in what direction ‘forward or not?’

Prevalent Societal Structural Review

Recently, in Karnataka, a debate about attire has flared in the hallways of academic establishments. Effective in 2022, the Karnataka government issued an order to all government-run schools and universities requiring the management of each to adopt a single, standard policy for their respective schools. At first glance, it can be established principally that the issue relates to the freedom of religion guaranteed by Article 25. Drawing logical & legal lines in the alignment of the same, it must be established that the practice is an “essential practice” of the religion for the government to be prohibited from interfering with the concern. The right to freedom of speech and expression which is protected under Article 19 (1)(a) of the Indian Constitution lays the salient foundation of diversity & disagreement-based democracy for the welfare of all. Sublato fundamento cadit opus – The stumbling of the foundational ability to question, criticize and make a utility-based choice of the societal constituents can result in a collapse of a superstructural democracy into a communal trap. The root of the national explosion began when six girl students from the Mahatma Gandhi Memorial College in Udupi held a news conference on January 1, 2022, to protest the college administration’s refusal to allow them to continue wearing their hijabs while attending their courses, which sparked a global outcry. Parallelly & contemporarily, humanity has been defeated & conquered by the Covid-19 virus which has emerged with a battle of perceptions. In one opinion, the virus has been blessed by the nature to heal itself and to crumble the conceived notions of science – that humans can achieve anything. In the process of civilization, somewhere beneath our hearts, we began to challenge the power of creation – the God and it was his master plan to make us self-introspect that your ‘beautiful books’ imbibe every way of living & anthropoids are empowered only to understand it, neither to challenge it nor to change it!   

Unveiling Foundational Dimensions of Hijab

‘Hijab’ – the term evolved from three out of six thousand verses of the Quran, as deducted by our social analogy, is a veil worn by women as a headscarf to maintain modesty as well as privacy from unrelated eye sights and exposures. Ironically, it is a very much similar attire to that of Masks – one of the three warriors of Covid-19 i.e, Masks + Social Distancing + Sanitization. Though Hijabs were ideated as suppression of women in society, now it has unfolded in a different form of Masks, that we armor proudly.

Diverting to a different dimension, let us revert ourselves to a silent tale in the past – about 1400 years ago, wherein the Prophet Muhammed went over to God (Surah Al-Azhab, Chapter 33: Verse 59) taking the concern of increasing attacks & molestation on women in Medina, Saudi Arabia. A verse in the Quran (Surah An-Nur, Chapter 24: Verse 31) was released asking daughters, wives & women of belief to dress in a protected way that they are not known, as well as in accordance with the function of women & customs of the society. This is where the ever-debated piece of clothing has unrolled from. Now, we are made to believe by the unending energy above our heads that charges our souls, that our culture & tradition has everything well defined in itself – of the lifestyle, customs & habits. In the process of civilization, we count things as useless, but the almighty has created everything & planned accordingly with a broader view of his creation & for his followers.

Together, we need to change a little – the way we think, looking at the same but observing from a different notional angle. The hijab includes the way a person walks, talks, looks, thinks, believes, and aspires to others. Of the three verses that refer to how women should dress – the term ‘Hijab’ is nowhere mentioned. However, it is mentioned in the Quran elsewhere & has been meant very much lucidly as well as correctly by God, unfortunately, it’s ‘WE’ that believed Muslim scholars who were either misinterpreting or misrepresenting. In the Quran, Hijab has been meant as a ‘barrier or a divide’ (Surah Al-Azhab and Ash-Shuraa: Verse 33 and 51 respectively) the divide between humans & the divine, the divide between believers & non-believers, the divide between good & evil, the divide between the sky & our imaginations, the divide between the beautiful & our perspectives, the divide between the creator & the diverters and the divide between suppression & liberation. The unfortunate part is ‘WE’, despite nowhere being mentioned in the Quran, we follow the divide faithfully for the women – going to school, achieving dreams, learning life, dissolving innovations, inspiring revolutions, igniting change, enlightening imaginations, installing love & conquering the world – with equal participation to men for a better globe.

Lucidly established, the Hijab is not a women’s veil but a divide. Along with that, the Prophet Muhammed and the Quran (Surah An-Nur, Chapter 24: Verse 31) address the ‘burden of Hijab’, primarily on men than women, as Hijab refers to a modest lifestyle. The Quran commands men not to stare at women & not to be promiscuous, they are guided to restrain their eyes, to be chaste by themselves, and to be modest in the purest form. As per the Quran, men are advised to observe Hijab and co-exist with women in their attire based on the tradition of the society, they also, are warned by firmly stating that surely God is well aware of the intentions & actions of everyone.

Unsettling the dilemma of Personal Choice & Cultural Practice

We are encountered with the beautiful dilemma, wherein, Hijab is considered a symbol of the oppression of women in society, and simultaneously forcing not to wear it becomes violative of the personal choice & liberty of women. A sect of liberals urges that wearing Hijab oppresses women by imposing a veil on little girls & third-wave feminism holds that women should get to choose which practices are best for them without having to consent to anybody else’s expectations. But explore around the wobbling instinct, is an uncovered head what liberation looks like? Essentially, ‘Personal Choice’ becomes the element of supreme importance. One must be able to enjoy his/her rights to an extent it causes infringement on the rights of others. On the other hand, Masks are a symbol of liberation, understanding as well as acting following the need. Our society thinks that the concept of the Hijab, Khimar, or Naqab induces discrimination against people, their mental state, and their way of living. Why only women should think & be blamed for everything? Why she must care for the termite society we build? Why is it not her right to live & to make a living by what she is capable of rather than with what sex she is born? 

Balancing Public Order and Justice from the Legal Perspective

“The moral edict of the law and morality cannot be clubbed with religion.”

The Karnataka High Court was posed with this landmark question of law about the reasonable conflict between the personal choice of women to wear a Hijab and the institutional authority to abide by the Uniform Code. In this case, if the personal choice is protected beyond uniform identity, then the primary purpose of establishing an equal identity with the uniform in the institution beyond race, caste, religion, community, class, or any other form of the divide would be nullified. In alignment with the same, repercussions of the said liberty would be pathetic leading to further communal divide & isolation giving no recognition to the implied consent by institutional affiliation. Although, like every other right, the Right to Freedom of Speech and Expression under Article 19 (1) (a) is not absolute and is subject to reasonable restrictions laid in Article 19 (2). Revolving around the aspect of the Hijab as a form of symbolic speech, highlighted by the court in NALSA v. Union of India referring to City of Chicago v. Wilson et al, which deals with a number of constitutional concerns, humans express their identities via their mannerisms and clothing, outlined significant outlook that this expression is a basic right protected by Article 19(1)(a) of the constitution. The Courts, Guardians of the Constitution, have the primary duty to protect Justice & Welfare for all. Notions that the majority of society thinks are rightful are not necessarily right in the eyes of Law. Generally, in the cases where a huge part of the society is involved, the Law and Justice are sacrificed at the cost of public order, which sets out a fallacious precedent for the judicial system. On that premise, it becomes an opportunity for the Supreme Court to comprehensively deal with the issue with due consideration to the analogies highlighted and draw a lucid line of distinction, in the appeal. Thereby, this crucial question of law must be dealt with very comprehensively and reasonably by the Court in the view of a stark balance between public order & ends of Justice.  

Concluding Thoughts and Recommendations

“Being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions.”^[1]

Personal Choice becomes of utmost importance, anything forced is violative of the principles of Liberty – Be it Hijab or any other cloth. In society, there is a trade-off between acceptance & respect by snatching your ‘identity’. The epicenter of the discussion should be focused more on oppression faced by women than on a particular cloth, which becomes the power of democracy where you speak to impact, question imperfections, debate-discuss & decide towards being better. We need to understand the values of the constitution, examine & analyze unbiasedly, question & criticize, and exercise the right to rational choice. Transparent & unbiased dialogue on every socio-legal issue is the key. This ability to speak, ask, question, assess, argue, debating & decide is ‘liberation’. Consonantly, the verses of the Quran were left intentionally vague so that women can decide what to wear, according to their comfort, customs & functions in society. To my opinion, in this emergency – ‘Masks are also Hijabs’, as per today’s need of the environment to create a divide between the ignoble Covid-19 virus and humankind. Now is the time to armor these masked hijabs as the ‘society’, not only women, needs it. Opine beautifully, positively, & let them fly to liberation.

^[1] John Locke, Second Treatise on Civil Government, 1689.

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ABOUT THE AUTHORS

Mohammad Atik Saiyed & Shukla Pooja Sunilkumar

With the virtue of reasoning and language, being much into extraordinary than just merely ordinary humans; Pooja Shukla &  Atik Saiyed, students in their third year of study at Gujarat National Law University, have goals to revolutionize society and the lifestyle around by being a little extra than the ordinary with their immensely powerful thoughts and visions on the different outlooks on different realms, dimensions, and perspectives. Conflicting & dissolving in their distinct core ideologies, one with mathematical reasoning & the other with societal sentimental psychology, persist in examining & analyze unbiasedly, questioning & criticizing, and exercising the right to rational scientific choice for societal justice & welfare. Considering the goal of changing as their passion, they have penned several articles and research papers on essential law topics.