Indian scholars and activists criticize the decision to ban the school hijab

NEW DELHI (AP) – Recent court ruling upholding ban on Muslim students wearing hats in schools has drawn criticism from constitutional scholars and human rights activists who say excessive judicial action threatens religious freedom in officially secular India.

Although the ban was imposed only in the southern state of Karnataka, critics worry it could be used as a basis for broader restrictions on Islamic expression. in a country that is already experiencing a surge of Hindu nationalism under Prime Minister Narendra Modi’s ruling Bharatiya Janata party.

“With this decision, the rule you are adopting can restrict the religious freedom of every religion,” said Faizan Mustafa, a religious freedom scholar and vice-chancellor at Nalsar Law University in Hyderabad. “Courts should not decide what is essential to any religion. In doing so, you prefer certain practitioners over others. ”

Proponents of the decision say it confirms the authority of schools to determine the dress code and manage student behavior, and it takes precedence over any religious practice.

“Institutional discipline must prevail over individual choice. Otherwise, it will lead to chaos, ”said Karnataka Attorney General Prabhuling Nawadgi, who defended the state case in court.

Prior to the sentencing, more than 700 signatories, including senior lawyers and human rights activists, voiced opposition to the ban in an open letter to the chief justice, saying “the introduction of absolute uniformity against the autonomy, inviolability and dignity of Muslim women is unconstitutional.”

Dispute began in January when a public school in Udupi, Karnataka, banned students wearing hijabs from entering classes. Officials said Muslim headscarves contradicted the campus dress code and needed to be strictly adhered to.

Muslims protested and Hindus staged counter-demonstrations. Soon other schools imposed their own restrictions, forcing the Karnataka government to impose a nationwide ban.

A group of Muslim students sued on the grounds that their basic rights to education and religion were being violated.

But a panel of three judges, which included a Muslim woman, ruled last month that the Koran does not declare the hijab as a necessary Islamic practice, and therefore it may be restricted in classes. The court also stated that the state government has the right to prescribe uniform recommendations for students as a “reasonable restriction of fundamental rights”.

“What is religious is not obligatory, so it cannot be the main part of religion through public agitation or heated debates in the courts,” the board wrote.

The verdict was based on what is known as a test of substance – largely on whether or not religious practice is mandatory under that belief. India’s constitution does not make such a distinction, but courts have used it since the 1950s to resolve disputes over religion.

In 2016, the Supreme Court of the southern state of Kerala ruled that hats were a religious duty for Muslims and therefore necessary for Islam. Two years later, the Supreme Court of India again used this test to lift historical restrictions on the entry of Hindu women of a certain age into a temple in the same state, saying it was not a “basic religious practice.”

Critics say the test of substance gives the courts broad powers in theological matters where they have little experience and where the clergy would be a more suitable arbiter of the faith.

The Supreme Court of India itself has doubts about this test. In 2019, she set up a nine-judge panel to reassess, calling her legitimacy on matters of faith “questionable”. The case is still pending.

The lawsuit in Karnataka referred to the ruling of the state of Kerala from 2016, but this time the judges came to the opposite conclusion – confusing some observers.

“That’s why judges choose not-so-excellent interpreters of religious texts,” said Anup Surendranath, a professor of constitutional law at the National Law University in Delhi.

Surendranat said the most sensible way for the court would be to test what Muslim women believe to be true in terms of faith: “If wearing the hijab is a truly convinced Muslim girl, then why … prevent it at all by faith?”

The ruling was welcomed by representatives of the Bharatiya Janata party, including Mukhtar Abbas Nakvi, the federal minister for minority affairs, and Bi Nagesh, the education minister of Karnataka.

Satya Muli, a lawyer for the Bombay High Court, said the judiciary is quite reasonable to restrict religious freedoms if they contradict the dress code, and the verdict “will help maintain order and uniformity in educational institutions.”

“The question is whether the constitution is whether religion takes precedence,” Mule said. “And the verdict of the court responded to this, supporting the power of the state to restrict certain freedoms that are guaranteed by the constitution.”

Surendranat argued that the verdict was erroneous because it did not invoke three “reasonable restrictions” under the constitution that allow the state to interfere with religious freedom – for reasons of public order, morality or health.

“The court did not refer to these restrictions, although none of them justifies the ban on the hijab in schools,” Surendranat said. “Rather, it emphasized uniformity in schools, which contradicts the diversity and multiculturalism supported by our constitution.”

Karnataka’s decision was appealed to the Supreme Court of India. The plaintiffs requested an expedited hearing on the grounds that a prolonged ban on the hijab threatens the loss of Muslim students for the entire academic year. However, the court refused to hold an early hearing.

Muslims make up only 14% of India’s 1.4 billion people, but are still the second largest Muslim population in the world. The hijab has not historically been banned or restricted in the public sphere, and women who wear the headscarf – like other outward expressions of faith in various religions – are common throughout the country.

The controversy has further deepened denominational fault lines, and many Muslims worry that a hijab ban could encourage Hindu nationalists and pave the way for additional restrictions on Islam.

“What if the ban becomes national?” said Aisha Hajira Almas, one of the women who challenged the ban in the Karnataka courts. “Millions of Muslim women will suffer.”

Mustafa agreed.

“The hijab is liberating for many girls. It is a kind of deal that girls make with conservative families to go out and participate in public life, ”he said. “The court completely ignored this prospect.”

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Associated Press writer Krutik Patti of New Delhi contributed to this report.

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Religion Coverage Associated Press is supported by AP’s collaboration with The Conversation US with funding from Lilly Endowment Inc. AP is solely responsible for this content.

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