Yes. I'm finally posting. Yes, I'm finally talking about this shit. Over the past few weeks, I've been watching this so-called movement unfold with more and more copious amounts of steam pouring out of my ears. But despite my faith in human intelligence, this non-issue shows no signs of dying down. So I might as well throw some of my thoughts into this disgusting potpourri.
Perhaps it would be prudent to start with some context. Near the middle of November last year, some Muslim female students expressed their belief that they ought to be allowed to wear a hijab on campus at a government college in Udupi, Karnataka. Their claim was that it was discriminatory to their religious beliefs to not be allowed to bear their ostensibly religious symbol along with the prescribed uniform. Despite the college administration holding multiple discussions with these students and their parents, about 6-8 remained adamant. As there was a strict dress code enforced in the institution, the college administration then cleared up any confusion by issuing a formal order specifying that the hijab was not part of the permissible dress code and that students should strictly adhere to the uniform. After the holidays, when the college reopened in December, all girls wearing a hijab, burkha, niqab or any other form of Islamic gear were stopped from entering the college as per this order,
As is pretty apparent, this is a simple dress code issue. The problem could be framed as easily as:
Students barred from college for violating dress code
But, as we all know, to our utter disgrace and misfortune, it is quite impossible to leave an issue at that for our exalted press. And, of course, this is especially true when the interests of the 'minority community' is involved. So, instead, the headlines turned into:
Muslim girls not allowed to enter college for wearing the hijab
Technically true, but oh, what a wondrous thing technicality is! Suddenly, the issue is not of an educational institution prescribing disciplinary rules, something that is so common that ninety-nine percent of people would not spare a second look for such a regulation. No, the issue is that of an Islamophobic and majoritarian Indian state depriving its minorities of their religious freedom. It became an issue of Muslim rights, an issue of women's rights, an issue of Hindutva terror. And among all of that, the basic point that is so simple sailed a few million light-years above everyone's heads. It probably did a few drifts and barrel rolls along the way too, just for spite.
Protests tore across the State. Legions of waddling black robes descended onto the streets like an invasion of penguins (let the conspiracy theorists have a field day with that one). And the Hindu-right wing was ready to meet their charge with waving saffron scarves and steady streams of 'Jai Shri Ram'. Both sides utterly missed the point. "Choose Hijab or Education!" screamed the headlines. The case even reached the courts, where a few Muslim 'shernis' are claiming a right to wear their headgear anywhere and everywhere under the fundamental right to religion (Article 25, for those who still haven't memorized them from Swara ji's occasional tirades).
This is anything but an issue of religion. This is an issue of a society fed on the poisoned milk of Khan Market and Lutyens elites to grasp at every issue as one of communalism, and an issue of a community that has been trained by the whip of vote-bank politics to see the shadow of oppression leaping at them from around every corner. In fact, this is anything but an issue at all.
Let's get the simpler things out of the way first. What does Article 25 of the Indian Constitution say?
(1) 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, practise and propagate religion. (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law— (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Explanation I.—The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. Explanation II.—In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.
A beautiful provision. Now let's pick it up and throw it out of a window. For most of our discussion, Fundamental Rights are absolutely useless. Why? This is because Fundamental Rights are a matter of public law; they seek to define the relationship between the State and the people. The Constitution is the fountainhead of all law, yes, but its operational power is only limited to the administration. Fundamental Rights, with a few exceptions, are enforceable only against the State and not against private individuals. This is because they rely on writs and judicial review for enforcement, both of which can only be issued against public bodies except in very niche cases. Article 17, 21, and 24 are a few examples of universally applicable rights, due to their special wording; even so, they are in practice not enforced by writs but by corresponding laws such as the Child Labour (Prohibition and Regulation) Act or the Protection of Civil Rights Act. Insofar as Article 25 is concerned, the freedom of religion it grants is guaranteed by the State. It is an assurance that the State will never restrain any religion from conducting itself in the appropriate way, subject to a few practicalities.
Educational institutions, on the other hand, are private premises. The private owner of a property may, subject to very few prohibitory rules, do what he likes with his property. Murder is forbidden by law, and committing it on private property will never save you because criminal law, like constitutional law, is public law, and the State's jurisdiction reaches into every home. But there is no law in existence that forbids any person from prescribing a dress code or any other rules for granting entry onto their premises. If I stipulate that any person desiring to enter my house must come in wearing a bikini and walking on his hands, that's my prerogative; a stupid prerogative, admittedly, but valid nonetheless! Similarly, it's a business' right to remove anyone from their property or refuse service to anyone. Similarly, it is a school's right to prescribe a dress code. In the absence of any statute that confers in relations among private persons a prohibition from prescribing rules of entry to owned or possessed property, no one can claim a right to wear what they desire while on the premises of another, against their wishes. Should a person step foot on or, having entered, stay on a property against the possessor's stipulations and wishes, the law has created a succinct word to describe such an action: trespass. And as most of us would know, that is not a very nice thing to do. In fact, educational institutions may sometimes be forced to institute rules against their will due to government orders; various States have taken upon themselves such powers in their respective Education Acts. For example, the Karnataka government invoked Section 133 of their Act to pass an order mandating that only prescribed uniforms be worn on premises after this fiasco, to prevent standoffs and conflict between students.
“What if tomorrow someone comes to the college in shorts saying it is hot? We cannot allow it. Colleges had set their own rules and it was being followed. There are Christian missionary-run colleges and a few of them do not allow Hindu students to wear bangles or bindis. Nobody has questioned it because it was the college’s decision.” —B. C. Nagesh, Minister of Primary & Secondary Education, Karnataka
If by this point, it has not become abundantly clear, I will repeat it once more, as concisely as possible: "Fundamental Rights aren't worth the paper they're written on when it comes to private institutions."
But now it's time to address the elephant in the room. The Pre-University College for Girls in Udupi, the flashpoint of this controversy, is a government college. Indeed, many prominent educational institutions across the country are. So, you say, should Fundamental Rights not apply to them, at least? And you would be absolutely right! In Ramana Dayaram Shetty v. The International Airport Authority of India (1979), the Supreme Court had held that any institution receiving significant financial or non-financial aid from the government and/or under deep and pervasive State control would fall under the definition of 'State' as given in Article 12 and thus be bound by Fundamental Rights. Additionally, such a college also discharges the function of education, which was held to be a public function as per Dr. Janet Jeyapaul v. SRM University (2015).
Ram those "A-ha!"s back down your throat. That's right. I'm not done yet. Firstly, universities and colleges, falling under the ambiguous 'other authorities' section of Article 12, must walk a razor-thin line to keep this tag. Just the right amount of funding, statutory authority, State control, and myriad other factors are required to make this distinction. When push comes to shove, it is likely that many so-called governmental institutions will not be able to qualify for the tag. And even assuming it does, the wearing of a hijab has about as much chance of being protected under it as a Hindu has of making it to a ripe old age in Pakistan: extremely slim.
Article 25, as you may have noticed if you paid attention to the massive wall of text (I know you skimmed, you lazy bum), does not prohibit the State from interfering with secular aspects of religious practice. In other words, only the core aspects of the religion, and not anything ancillary, are protected by this law. The judiciary has named this the Essential Religious Practices Doctrine; if a practice is not essential to the profession, practice, and propagation of the religion in question, it is not protected from interference under Article 25. According to the 'Shirur Mutt case', the Supreme Court held that only the activities forming the utmost crux of the religion, without which it loses all meaning, would fall within the ambit of a 'religious' activity. Activities relating to these practices, whether political, financial, economic, or cultural, without being absolutely indispensable, all would fall within the purview of 'secular practices' and thus be amenable to regulation. Thus, the government cannot tell a Hindu which god to worship, but it can prescribe how temples take donations. Additionally, practices that are ostensibly religious but have actually arisen through customary superstition are not protected by Article 25, as held in Dargah Committee, Ajmer v. Syed Hussain Ali (1961).
The wearing of a hijab, niqah, burka, or any other piece of headgear is not an essential religious practice of Islam, as revealed by these points among many:
Many practicing and openly Muslim women eschew the associated headgear.
Hijab or other adornments are not an indispensable part of daily life and women including those protesting for the right to wear them have appeared in public without them regularly (as opposed to, say, Sikhs, who wear their five symbols with a ritualistic regularity).
The impugned articles of clothing do not serve communion with their God (Allah) in any way, shape or form.
Multiple countries, including Islamic countries, have banned some or all such headgear without it detrimentally affecting the practice of Islam.
Even if, for the sake of argument, the wearing of the hijab or any other article of clothing is taken to be essential to Islam, the State has been granted the right to interfere even in protected religious activities on grounds of public order, morality, or other fundamental rights. This stipulation enabled the government to ban religious practices such as animal or human sacrifice, even though they clearly formed core religious activities among many communities including major Hindu sects. Where there is a risk of upsetting public order and causing conflict and affray by allowing Muslims or Hindus to don any religious article, the State has been given the full suite of powers required to control, limit, or absolutely prohibit such an act. This is, in fact, something that gets lost all too easily among screeching news anchors: every single student, regardless of their community, has been instructed to strictly follow the dress code. Saffron scarves are just as prohibited and uncalled for as hijabs, and the only reason Hindu bodies have been forced to continue wearing them (sitting outside the premises of the college, where they have every right to) is to mark their protest against Muslim women who continue to flout the norms: merely one symptom of the irrational demand of the Islamic community that an exception should be carved out into every single rule for them.
In summary, I refuse to make this an issue of religion. It is a matter of the right of every individual and every person, whether natural or juristic, to administer and enjoy his property as he sees fit. The only reason I refer to the hijab and the Islamic community throughout this article and single them out is that they have taken the maximal benefit of this situation. Without hesitation, they have whipped out their victim cards and turned an open-and-shut dress code case into an ugly trainwreck saga of imagined oppression. I can only hope that the people and stakeholders involved come to their senses within a reasonable time and see this story for what it is: a farcical waste of time and resources that benefits no one and inconveniences only the august pursuit of education. It was never a choice between hijab and education. It was a choice between thinking like a human being and thinking like an ox, and I'm afraid many have failed to clear the test.
Thank you for giving this article a read, and I'll see you next time! Adios!
Succinct and humourous understanding of the law. Pleasurable read.