Hijab Ban Verdict And The Need To Prioritise Girls’ Fundamental Right To Education

 [First published in Women’s Web]

Yesterday, the two member bench of the Supreme Court handed a split verdict on the appeal against the Karnataka High Court judgement upholding the hijab ban by educations institutions in the state.

Those of us who have been following the case in the Supreme Court expected Justice Hemant Gupta to dismiss the appeals challenging the decision of the Karnataka High Court. It was no surprise to anyone that his judgement dismissed the plea by the young women that they should be allowed to wear hijabs in the classroom.

However, the judgement of Justice Sudhanshu Dhulia gives hope.

When the young women filed a petition before the Karnataka High Court seeking permission to wear the hijab in the classroom, the High Court dismissed the petition by stating that unlike the turban in the Sikh faith, the hijab was not an “essential religious practice” of the Islamic faith, and therefore they were not exempt from the guideline issues by individual educational institutions.

While ‘hijab’ is mandated in the Quran, there are different interpretations on what ‘hijab’ actually means. The High Court, therefore, should not have based its judgement on whether or not the hijab is an “essential religious practice” or not- if some women consider it an “essential religious practice”, it is not for the High Court to decide that their interpretation is not the right one.

Instead, the High Court should have realised that by upholding that hijabs were not permitted in the classroom they were forcing may young women to choose between following the dictates of their faith and getting an education.

There is little to be gained by creating a “hijab ya kitab” (hijab or book) binary- in a patriarchal country like India, young women already have to navigate complex minefields, without the system adding yet another level of complexity.

Many people who had absolutely no skin in the game, claimed that they were trying to free young women from a patriarchal society that forced them to wear a hijab. False equivalences were drawn with the anti-hijab protests in Iran to underscore the point that hijabs should be shunned.

So from some of the things Justice Gupta said, one had feared that the judgement too would be along similar lines, and the hijab ban would be upheld.

It is here that the judgement of Justice Sudhanshu Dhulia gives hope.

Justice Dhulia dismissed the need to establish whether or not a hijab was an “essential religious practice” and stated categorically that “when protection is sought under Article 25(1) of the Constitution [which states that all persons have the right freely to process, practice and propagate religion], it is not required for the individual to establish that what he or she asserts is an essential religious practice. It may or may not be a matter of essential religious practice, but it still is, a matter of conscience, belief, and expression.”

“If she wants to wear hijab, even inside her class room, she cannot be stopped, if it is worn as a matter of her choice, as it may be the only way her conservative family will permit her to go to school, and in those cases, her hijab is her ticket to education.”

By stating that, Justice Dhulia showed an astute understanding of the practical meaning of “choice”. When we make choices, we always choose between the alternatives that are available to us. For many young women (though certainly not for all) the choice often is “don the hijab and go to school” or “refuse to wear the hijab and drop out of school”. When schools/ colleges ban the hijab, the young woman doesn’t get mysteriously “empowered” to shun the hijab- often she just ends up dropping out of school/ college.

Justice Dhulia then went on to add: “But the thing that was most important in my mind while deciding this case was the education of a girl child. It’s common knowledge that already a girl child, primarily in rural areas and semi-urban areas, has to face a lot of difficulties. She has to help her mother in daily chores, in cleaning and washing, before she goes to school. There are other difficulties as well. What I ask is are we making her life any better?”

This part of the judgement will be quoted for many years to come, because it strikes at the heart of what the judicial system should do- keep the interests of the most vulnerable people at the center. As Justice Leila Seth says in her book, Talking of Justice: People’s Rights in Modern India, “treating persons who are in an unequal situation equally does not do away with the injustice. This situational imbalance has to be rectified first.” While educational institutions can and must uphold their rules, if these rules deprive young people of an education, the rules must be overthrown.

Even if people think that the hijab is a patriarchal construct, the way to “liberate” women is by enabling them to get an education so they are economically and emotionally independent, and therefore empowered to take decisions which may go against societal expectations. Anyone who genuinely cares for the empowerment of women should oppose the hijab ban, as Justice Dhulia pointed out.

n an ideal situation, one would have hoped that the Supreme Court bench would have dismissed the High Court judgment that upheld the hijab-ban. However, in light of the many pronouncements that go against the fundamental rights of women and minorities, the judgement handed down by Justice Dhulia is a ray of hope. As Harper Lee wrote in her book To Kill a Mockingbird, after Atticus Finch kept the jury out for hours in the trial of a black man accused of raping a white woman:

“You think about that,” Miss Maudie was saying. “It was no accident. I was sitting there on the porch last night, waiting. I waited and waited to see you all come down the sidewalk and as I waited I thought, Atticus Finch won’t win, he can’t win, but he’s the only man in these parts who can keep a jury out so long in a case like that. And I thought to myself, well, we’re making a step- its just a baby step, but it’s a step.”

This judgement is a baby step, but it holds hope.

With a split verdict, the case will now go to the Chief Justice, who will give the final verdict on whether educational institutions in Karnataka can enforce a hijab-ban. One hopes the verdict will be in favour of the young women. Justice Gupta will retire at the end of the week- this may be his last significant judgement. Justice Dhulia’s judgement will, however, continue to be quoted for many years to come.

Is a woman obliged to carry to term a baby that is the "nishani" of the father?

[First published in Women's Web]

A retired official, and advocate at the High Court recently narrated a story of the widow of a Kargil martyr who was pregnant at the time of his death. From a purely practical standpoint, her parents advised her to have an abortion, but her in-laws wanted her to have the child since that was the “nishani” of their son. When the lady insisted she didn’t want to have the child, her in-laws went to the District Collector who, purely on humanitarian grounds, ordered the woman to stay with her in-laws, carry the child to full term and hand it over to the grandparents to bring up. Though the person posting this story was deliberate vague on whether it was a recent case or an old one, she by specifying that there was nothing in the rules to permit it, admitted that the decision of the District Collector was purely arbitrary. She used it to argue that decisions around pregnancy should not be left to the mother alone, because issues like ‘inter-personal emotions, traditions and responsibilities’ also come into play. 

Looking at the case purely from the facts that were shared by the person, there are several aspects that are extremely disturbing.

The choice of the woman is not mentioned anywhere in the narrative- it only talks of her parents advising her to abort the child, and her in-laws demanding that she bear the child. This is, unfortunately, the reality in India. A woman has very little agency in deciding what she wants for herself. She is caught in the expectations of various people, many of whom do not even have a stake in her well being, which severely restricts her ability to think dispassionately for herself. In most conflict situations, the woman’s opinion is not even considered- different people face off among themselves to determine which of them gets to decide her action. This is the reason why women try to seek a powerful ally within the external family if they want to do anything that they think the family may not approve of.

In this case, the parents of the woman have a more pragmatic approach. Given that this is her first child, one assumes the woman is not very old, and perhaps not even equipped to have a professional career. Like it or not, remarriage is the most sensible option for her, and remarriage will be much easier if the woman is not burdened with a child. Even if the woman is not thinking of remarriage right away, it is extremely hard to be a single parent, and this may not be the appropriate time where she can take a decision on whether or not to have the child. Anyone who has the best interest of the woman at heart will remind her of the practical considerations, and request her to keep that in mind while taking a decision.

The in-laws, on the other hand are acting in a purely emotional way. Having lost a child, they want to substitute him with a grandchild. In stating that they will bring up the child themselves, they have clearly not thought the issue through. At their age, are they physically and emotionally ready to bring up a baby single handedly? Will they expect the mother of the child to breast-feed the baby for six months, or will they be able to make alternate arrangements? Who will look after the child after they are no more? Is it fair to expect a grandchild to look after their grandparents like they would a parent? 

There are other issues too, which pertain to the well being of the baby. Should a baby be brought into the world with the weight of other people’s expectations on them? How will a child feel knowing that they are not an individual by a “nishani” of their dead father- that people do not necessarily care for them, except as a reminder of someone else who has passed on? When the child asks about their mother, what will the grandparents tell them- would a child really want to know that their mother wanted to abort them, and that she abandoned them soon after giving birth?

There is a possibility, however low, that the mother will bond with the child and not be able to give the child up. What if she chooses to bring up the child on her own, and denies the grandparents access to the child? Is that a possibility that anyone has even considered?

The biggest question is the one that everyone avoids- the grandparents are presuming the child will be male. What if the child is female? Will they still consider the child a “nishani” of their martyred son? Or will the grandparents put the child up for adoption after having forced the mother to give birth?

Lastly, why should the District Collector be involved in something that is purely a personal matter? No laws were broken, nor were any evoked. The District Collector should have sent the in-laws away by saying that this was outside their ambit of responsibilities. Not only did the District Collector not do that, they chose to issues directions that impinge on the rights of the pregnant woman and could be easily challenged in court.

As if illegally coercing a woman to not abort a foetus was not bad enough, the District Collector has compounded the injustice by forcing the woman to stay with her in-laws till she delivers the baby. The logic behind this would have been to ensure that the woman wouldn’t quietly have an abortion and then declare it was a miscarriage. However, now the woman has been forced to live in a hostile environment for several months. The woman who is silently grieving the loss of a husband will not only have to bear the emotional fluctuations of a pregnancy she doesn’t want, she will have to do it in a house where her only identity will be that of a receptacle of her dead husband’s “nishani”. It is extremely likely that during the period of her pregnancy she will virtually be under house arrest and may not even be allowed to visit her parents or have them stay with her for emotional support. We also do not know how long after delivery the house arrest will last- will she be compelled to stay till the baby is weaned off?

What is even more disturbing is the fact that so many people are hailing this story, and using it as an example to prove that in case of medical termination of pregnancy, the woman should not have the right to decide.

People are taking it for granted that as a pregnant widow”, it is the moral obligation of the woman to give birth to the “nishani” of the “shaheed”. Without irony, the woman sharing the story says, “This decision, of course, was under no Rules and purely on humane emotions. Humanity and society is not a mechanical thing. It runs on. Our Hon. Supreme Court needs to understand that “my body my choice” is OK till it does not intervene with others’ rights.”

However, what “rights” are people talking about? The parents of the martyred soldier need grief counselling to help them get over the loss of their only son. A grandchild cannot, and should not, be a substitute for a dead child. Even if it temporarily numbs the pain of losing a child, it is not fair on the grandchild to bring them up with such expectations.

If anything, stories like this underline exactly why abortion laws should give the mother and only the mother the choice to decide whether to carry the child to term or not. While people may argue that the father of the child also has a say in whether or not to abort the child, in a healthy relationship, any decision taken by the mother will be one that is discussed by both partners. If the parents are not aligned, the only person who has the right to decide is the mother, since she is the one who will go through pregnancy, childbirth, and carry the larger burden of child rearing.

“My body, my choice” is not a western, feminist import as people claim it is. In the often repeated tale from the Mahabharata, Ganga agreed to marry King Shantanu on condition he will never question her. The story of her multiple pregnancies and child-births is the most powerful example of the agency that a woman enjoyed in the time of the epics.

The recent Supreme Court verdicts that reiterate the body autonomy that women enjoy is a welcome step. And stories like this only underline why it is important to tighten the laws so nobody can compel a woman to do something she doesn’t want to.