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The Karnataka Hijab row is about Right to Education, not Freedom of Religion

Sania Ismailee

PhD Scholar, Department of HSS, IIT Delhi

Feb 22, 2022

This article is part of the series of responses from philosophers on the hijab row.

The Karnataka case is not a hijab ban case per se. It is the case of imposing a uniform which happens to impose a disadvantage over religious people who display religious symbols like hijab, turban, kirpan, etc. Note a rosary under my collar or a religious bangle/thread hidden under my sleeve will not be incompatible with a prescribed dress code. The central question is then whether the burden imposed by the uniform on religious students constitutes unfairness that must be accommodated for ensuring justice (here, equal opportunity for education). In this specific case, we know that forcing the uniform without accommodating the demands of hijabi Muslim women will hinder their access to education which will be detrimental to their development. It will curtail their opportunities, mainly because we know the economic backwardness of the Muslim community in general and how it may affect Muslim women's opportunities to access education and employment. Religious women will not take off their hijab to go to school but prefer sitting at home. This happened in France and reduced the integration of Muslim women into French society. Therefore, it is incumbent upon the state to accommodate their demands rather than marginalizing an already marginalized group. The uniform rule does not stop anyone from being a Muslim with a hijab but hinders her access to education by disallowing wearing hijab on school premises. This is a subtle but pertinent distinction.

I don't think an essential practice test is required to arrive at a solution. The essential practice test is used by Indian courts to scrutinize a controversial religious practice. For instance, whether Hinduism stops women of menstruating age from entering the Sabarimala temple. In the Karnataka case, the central concern is not whether the religious practice is contentious given the specificities of the case. The centrality of the hijab to the integrity and identity of these women is sufficient to accommodate their demands without curtailing their access to education. The centrality of hijab to their "ethical integrity" and identity offers valid grounds for distinguishing the hijab from other clothes like shorts or clown caps. The burden of making education accessible is on the state, not on the religious student. Therefore, the salience of these issues renders insufficient the "I want to distance myself from the BJP to support the Muslim woman" argument.

Sundar Sarukkai's argument on the relationship between uniform and equality doesn't address the central issue by eliminating the Muslim figure. Besides, uniforms do play a role in ensuring equality, other things remaining equal.

A cursory theme of the Karnataka row is whether the hijab is a patriarchal and forced practice or a case of false choice. Or whether the Quran prescribes hijab as a specific dress code or whether "it is high time for Muslims to accept social reform and move on." We often conflate what is practiced in Muslim societies as Islamic. This is an unconscious jump because oppressive practices by patriarchs (men and women) are justified in the name of Islam. But that doesn't necessarily mean it is indeed an Islamic practice. Here, I disagree with the claim that the hijab is a forced practice "always" (see Nilüfer Göle's study on the different reasons women do hijab--not always religious but not always forced as well). I am not saying hijab is "never" forced. I agree with the argument from control over women's bodies: imposing upon the woman to cover or not to cover is exercising control over their bodies.

Take the case of triple talaq or nikaah halala. Powerful Muslim women's movements have used the Quran and sharia to fight patriarchy. So, claims that the Quran is an archaic text are false. Because if it was an archaic seventh-century text with no relevance, how do these religious women use it to secure their rights? (See the brilliant work by MUSAWAH on Muslim family law reform around the world). I am not suggesting that religion is never a tool for oppression. Over here, it is crucial to realize that religion can be a powerful source for reform. Liberal scholars like Martha Nussbaum and Ayelet Shachar have explained how the liberal dismissal of religion as patriarchal leaves the religious woman in a dilemma where either you can be religious or be liberated; there is no middle ground. This is a false dilemma. You can be religious and liberated. Powerful Muslim women's movements around the world are challenging this dilemma rooted in the Western liberal feminist framework along with fighting against orthodox religious interpretations and state repression of minority voices (see Amina Wadud's and Asma Barlas' works). The liberal feminist framework projects itself as a false universal such that if you fall short of its standards, you are branded as illiberal. Discourses on decolonizing theory have pointed this out. So the Muslim woman does not "need saving" from Islam by liberals (Lila Abu Lughod).

Most people don't know anything about Islam's position on women and mistakenly conflate oppressive practices of Muslim societies with Islam. Of course, it is never enough to say this is not Islamic, even if it is justified in the name of Islam (similar arguments made in the context of violence in Islam and terrorism). But one must acknowledge religion as a powerful tool for reform. For instance, Raja Rammohan Roy used Hindu scriptures, not secular reasons, to argue against sati.

For a philosophical piece defending the hijab in the French ban context, see Cecile Laborde.


Read other articles in this series:

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