Persecution Of The Hijabis:  Groundless Srtictures

By :-Hussain Ali

ABSTRACT:

Constitution of India provides for all its citizens the freedom of religion under Article 25. People are free to profess, practice and propagate their essential religious practices. But many times such situation arises when religious practices are in conflict with the law or rules framed by various institutions of the country. There comes the role of the judiciary who decides the validity of both, the religious practice as well as the law. The results are not always satisfactory. Sometimes the decision is welcomed and sometimes it is not. The latter happened in the present case, the judiciary was unable to meet the expectation of minorities. This article critically analyzes the order of the Supreme Court of India, where it upheld the dress code to be followed in the retest of AIPMT (All India Pre Medical Exam) decided by CBSE (Central Board of Secondary Education). According to the new rules, Muslim girls were unable to wear their religious garments during the exam. This article will also cover up the various repercussions of this order of the Supreme Court.

Introduction:-

Recently a bench consisting of Justices R.K. Agarwal and Amitava Roy in response to a writ petitionscrapped the AIPMT (All India Pre-Medical Test) held on 3rd May 2015 on account of irregularities and alleged use of unfair means by the students. They asked CBSE (Central Board of Secondary Education) to hold the exams again.[1]Therefore,CBSE again issued the notifications for the exams on 9th July 2015 along withruleswhich panicked many.Instruction #7 of the notification stipulated:

“The candidates will observe the following dress code while coming for appearing in AIPMT Examination: Wear light clothes with half sleeves Shirt/T-Shirt/Kurtanot having big buttons, brooch or any badge flower and Trouser/Salwar etc.”[2]

Two Muslim girls: Asiya Abdul Kareem and Nadha Rahim approached the Kerala High Court seekingan exemption from this rule. The Kerala High Court granted them the exception, but on a condition that the said students will be present at the examination center half an hour before the exam time and would be subjected to frisking by an authorized female invigilator. The Court, however, refused to alter the dress code determined by CBSE in order to preserve the motive behind it i.e. the prevention of misconduct in exams.[3] Subsequently, Students Islamic Organization of India (SIOI), a Muslim organization knocked the doors of the Supreme Court of India for imposing a ban on CBSE’s instructions that bar students appearing for the AIPMT from wearing “scarf, full-sleeved shirts, and shoes”.[4] As a reaction, CBSE on 22nd July modified its notification from ‘mandatory’ to ‘advisory’ and mandated the frisking of the students who wore anything other than suggested attire.[5] The new notifications read as follows:

“Dress Code is suggested to avoid delay in the entry in the examination centre and to avoid inconvenience to the candidates during frisking by metal detectors. Candidates wearing a customary dress or such candidates appearing from the centers in extreme climatic conditions should ensure their presence for frisking by the metal detector, at least, half an hour before the last reporting time, i.e. 09.30 a.m.”[6]

All the ensuing decisions after the first notifications of CBSE were welcomed by the hijabis and a concurrent order from the Supreme Court was expected.However,the decision came as a bolt from the blue. In its ruling on 24th July 2015, a Supreme Court bench headed by Chief Justice H.L. Dattu rejected the proposed amendments in the notifications of CBSE on grounds that it was a “small issue”. It further went to state that the faith of Muslims will not “disappear” if they do not wear thehijab for a day.He added: “Faith is not connected to the clothes you wear. For three hours, you adhere to the rules (of CBSE) when you write the exams. Do this for the sake of the exams, which has been already re-scheduled. The court cannot be moved for such small issues.”Mr. Sanjay Hegde, representing the petitioners argued “It is my (student’s) essential religious practice… I have to adhere to it,” to this, Chief Justice Dattu responded that it is “nothing but an ego.”[7]

Shifting burden:

The ratio decidendigiven by the Hon’ble Court is subject to numerous criticisms on the following grounds. But before that, it is significant to understand the attire of Muslim women. Mainly they are of three types: burqa, niqaband hijab. However, these terms are misconstrued by most people.  Hijab is a veil worn around the neck by Muslim girls after attaining puberty in order to cover their head and chest. Niqabis a face veil that completely hides the body of a person except the eyes that are visible through a gap. Burqa is the most concealing of all Islamic veils; it covers the entire face and body, leaving just a mesh screen to see through.[8]The people who wear hijabs and niqabs are called as hijabis and niqabis respectively.

A better way to deal with the issue of past misconducts during the exam may have been to shift the obligation to CBSE. It had the responsibility to conduct a fair exam. The irregularities in the last exam reflect its failure to ensure proper decorum. It was the responsibility of CBSE to establish a proper mechanism of frisking. Nevertheless,it imposed an unjustified restriction on theclothing of students. And the various intricacies of the new dress code only distressed the already aggrieved students.

Essential religious practice :-

Supreme Court in the case of Police Commissioner v. Acharya Jagdishwaran[9]stated that all those practices which arose out of superstitious beliefs and “may in that sense are extraneous and unessential accretions to religion itself”and would not be protected under the Article 25 of the Constitution of India[10]. So to avail protection under this Article, the practice has to be essential and should be present in the religion since its inception.Hijab is mentioned in the Holy Quran twice- firstly in Chapter 24: Nur (the Light), in verse 30 and secondly in Chapter 33: Al-Ahzab, verse 59[11] and is not a product of superstitious beliefs. Therefore, hijab satisfies this condition for availing protection under Article 25.

Effects Test :-

Supreme Court advancedthe effect test in Anuj Garg v. Hotel Association of India[12]. It stated that: “Legislation should not be only assessed on its proposed aims, but rather on the implications and the effects.” and that: “No law in its ultimate effect should end up perpetuating the oppression of women”.Applying the test in the present circumstances, the aim of CBSE was to ensure the modesty of examination and to prevent the use of unfair meansby the students. But the effect wasthat it obstructed many of the Muslim from taking the exam. Theypreferred to leave the exams which came in the path of their religious beliefs. The day of the AIPMT witnessed similar cases, one such case was in Lucknow, where a Muslim girl declined to take off her abaya (loose rob that covers the whole body except the face) while giving the exam contrary to the order of the Supreme Court of India andwas thusbarredfrom taking the exam.[13]Another case was reported in Thiruvananthapuram, where a 19-year-old Catholic nun, Sister Seba was prohibitedfrom taking the AIPMT after she refused to remove her veil and cross attached to it.[14]

Consequences :-

Out ofnumerous cases, only a few came to light and others went unreported. Therefore, the order of the Supreme Court of India to uphold the rules of CBSE did not satisfy the effect test. Further, this resulted in “perpetuating the oppression of women”.14Theaim to maintain the standards of the exams may have been achieved but the effects were disappointing. Another consequence is that as Muslims are the least literate religion group in India with overall 59.1%[15]literacy rate in which males constitute 67.6%[16] and females 50.1%[17], so instead of taking such steps which could promote the education among them, the Supreme Court’s decision discouraged many of the orthodox Muslim femalesfrom chasing their dreams.

Dresses worn by the people affect their mental state. Dresses we wear give directions to our thoughtsand affect our emotions.Robert Ridge Associate Professor of Psychology at Brigham Young University, says that:“There definitely can be a relation between how people dress and how they feel, the more you like your appearance the more confident you can be”.[18]Similarly, the religious garments worn by females have a great psychological effect on their mental state. Such females take a pride in wearing them. From the infancy, they are taught respect and indispensability of any such garment.As a result, they become conscious of it. Therefore, following the dress code imposed by CBSEwould be upsetting for them. These females would not be able to perform according to their full potential. Apart from the exam anxiety that they would be facing an additional mental stress caused to them by their displeasing outfits.

A team of social psychologists Barbara Fredrickson, Tomi-Ann Roberts, Stephanie Noll, Diane Quinn, and Jean Twenge (1998)[19] in a research project found that women in swimsuits performed poorly on a math test compared to other women who put on a sweater. Similarly, social psychologists Mark Frank and Thomas Gillovich (1988)[20] found that male sports players who wore black dresses tend to perform more aggressively than the players who wore a white jersey. Therefore, it would not be incorrect to say that the order of the Supreme Court of India indirectly affected the performance of the hijabis.

Response of other countries :-

In 2013, a British lady, Nadia Eweida approached the European Court of Human Rights (ECHR) to manifest her right to wear the Christian cross at theworkplace. The court ruled that the practice of wearing a Christian cross will be protected under essential religious practice. It further stated “[This is because] a healthy democratic society needs to tolerate and sustain pluralism and diversity; but also because of the value to an individual who has made religion a central tenet of his or her life to be able to communicate that belief to others.”  It is significant to note that Christianity does not make thewearing of cross mandatory; therefore, it is not an integral part of Christianity. Despite this, the ECHR read this practice under freedom of religion. In such a case, why can‘t hijab get similar treatment and be accepted as a part of religious freedom.

Recently, the Canadian Federal Court of Appeal upheld the decision of the Federal Court regarding the law imposed in 2011 by the then-Immigration Minister Jason Kenney.  This law banned anyone from taking the citizenship oath with their face covered. The validity of the same was challenged on the basis of the Canadian Charter of Rights and Freedoms (La Chartecanadienne des droitsetlibertés, the Bill of Rights of Canada) by a lady of Pakistan origin lady ZuneraIshaq. She had passed all the required tests to acquire the citizenship of Canada but had to unveil her face during acitizenship ceremony. The judge ruled in her favor and held the law to be invalid. Therefore, it is proposed that if a country could allow a person to wear theniqab in a vital process of obtaining citizenship, why the students can’t be allowed to wear their desired religious outfits during an exam. As stated earlier, there exists a great difference between hijab and niqab. Niqab doesn’t meet the practical standards of contemporary society. Here hijab creates a balance between modernity and religious sentiments by covering the body of women while at the same time discerning one’s identity.

School Of thoughts :-

Different schools of thought attach different rules to various religious garments. There are four schools of Islamic jurisprudence: Hanafi, Maliki, Shafi’i, and Hanbali.  In Maliki, the face or hands of women could be shown, but the rest of the body has to be covered i.e. this school lays emphasis on hijab. Hanafi, Hanbali, and Shafi’i direct that entire body of the women has to be covered in front of strangers, i.e. it stresses on wearing of either burqa or niqab. It is purely a discretionary matter which school of thought a person adheres to.   Thus, it is clear that hijab is not a product of superstitious beliefs. Therefore, this part comes under freedom of conscience guaranteed again under Article 25.

Conclusion :-

Chief Justice Dattu’s reaction to Mr. Hegde: “it is nothing but an ego”[21]is deplorable. If following the code of belief of one’s religion (Article 25) and exercising freedom of expression (Article 19)[22]comes under the banner of ego, then it’s high time that judiciary realizes that the same ego is protected by the Constitution of India. Countless Muslims in India hold a perception that being aminority; they are always subjected to unreasonable and negative discrimination. This wasan opportunity for the judiciary to instill the confidencein Muslims that India is a secular nation and everyone is equal irrespective of their religion and their religious beliefs. Judiciary failed to do soby imposing an unreasonable stricture.

1″Supreme Court Scraps All-India Pre-medical Test 2015, Orders CBSE to Conduct Fresh Examination within Four Weeks.” The New Indian Express.N.p., June-July 2015. Web. Aug.-Sept. 2015. <https://www.newindianexpress.com/nation/Supreme-Court-Scraps-All-India-Pre-medical-Test-2015-Orders-CBSE-to-Conduct-Fresh-Examination-within-Four-Weeks/2015/06/15/article2867683.ece>.
[2]Abdul Rashid Agwan. “CBSE Makes Dress Code Advisory, Court Refuses the Petition!” Maeeshat.N.p., June-July 2015. Web. Aug.-Sept. 2015. <https://www.maeeshat.in/2015/07/cbse-makes-dress-code-advisory-court-refuses-the-petition>.
3″Kerala HC Allows Two Muslim Girls to Wear Hijab during AIPMT Test, but They’ll Be Frisked.” First Post.N.p., June-July 2015. Web. Sept.-Oct. 2015. <www.firstpost.com/india/kerala-hc-allows-two-muslim-girls-to-wear-hijab-during-aipmt-test-but-with-conditions-2356168.html>.
[4]Harish V Nair. “Muslim Organisation Moves Supreme Court after CBSE Bans Girls from Wearing Headscarves during Exams.”Mail Online India. N.p., June-July 2015. Web. Sept.-Oct. 2015. <www.dailymail.co.uk/indiahome/indianews/article-3172530/Muslim-organisation-moves-Supreme-Court-CBSE-bans-girls-wearing-headscarves-exams.html>.
[5]”No Bar on Wearing Customary Dress during AIPMT Re-test: CBSE.” The Economic Times.N.p., June-July 2015. Web. Aug.-Sept. 2015. <https://articles.economictimes.indiatimes.com/2015-07-22/news/64725821_1_dress-code-aipmt-re-test>.
[6]Supra note 2
[7]KrishnadasRajagopal. “SC Refuses to Entertain Plea on Allowing Hijab during AIPMT Exams.” The Hindu.N.p., June-July 2015. Web. Sept.-Oct. 2015. <https://www.thehindu.com/news/national/sc-refuses-to-entertain-plea-on-allowing-hijab-during-aipmt-exams/article7461056.ece>.
[8]Abraham. “Not All Headscarves Are Burkas: 7 Types of Muslim Headwear for Women.” 22 Words.N.p., June-July 2011. Web. Sept.-Oct. 2015. https://twentytwowords.com/not-all-headscarves-are-burkas-7-types-of-muslim-headwear-for-women/
[9] 1984 AIR 512, 1984 SCR (1) 447
[10] Article 25(1) of Constitution of India read as follows: Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion
[11]”The Qur’an and Hijab.”Al Islam. N.p., n.d. Web. 10 Oct. 2015. <https://www.al-islam.org/hijab-muslim-womens-dress-islamic-or-cultural-sayyid-muhammad-rizvi/quran-and-hijab>
16 [2007] INSC 1226
[13]”Muslim Student, Nun Refuse to Remove Religious Symbols, Do Not Take AIPMT.” The Times of India.N.p., 26 July 2015. Web. 26 July 2015<https://timesofindia.indiatimes.com/home/education/entrance-exams/Muslim-student-nun-refuse-to-remove-religious-symbols-do-not-take-AIPMT/articleshow/48220760.cms>.
[14] Ibid
[15]India. Office of the Registrar General and Census Commissioner, India. Ministry of Home Affairs.Distribution of Population by Religions.N.p., n.d. Web. 4 Oct. 2015. <https://censusindia.gov.in/Ad_Campaign/drop_in_articles/04-Distribution_by_Religion.pdf>.
[16] Ibid
[17] Ibid
[18]Hayley Eastman. “How Your Clothes Affect Your Emotions.” The Digital Universe.N.p., 28 May 2013. Web. 1 Oct. 2015. <https://universe.byu.edu/2013/05/28/1how-your-clothes-affect-your-emotions/>.
[19]Fredrickson, B., Roberts, T., Noll, S., Quinn, D., &Twenge, J. (1998). That Swimsuit Becomes You: Sex Differences in Self-objectification, Restrained Eating, and Math Performance. Journal of Personality and Social Psychology, 75, 269–284.
[20]Frank, M. G. &Gilovich, T. (1988). The Dark Side of Self and Social Perception: Black Uniforms and Aggression in Professional Sports. Journal of Personality and Social Psychology, 54(1), 74–85.
[21]Supra Note 7
[22]Article 19(1)(a) of Constitution of India read as follows: (1) All citizens shall have the right(a) to freedom of speech and expression.