In India, the dangers of a homogenous public culture
To the extent that the hijab does not communicate a message of discrimination, inequality, or violence, what grounds allow the State, and State institutions, to ban it?
On February 5, the government of Karnataka passed an order stating that students of pre-university colleges will have to mandatorily wear the uniform prescribed by the college administrative board, and — in the absence of any prescription — “clothes which disturb equality, integrity and public law and order” couldn’t be worn. The order came in response to a set of incidents in various colleges, where women students wearing the hijab were forbidden from entering the campus.
In the aftermath of these events, a number of arguments have been made. Some have argued that the wearing of the hijab is an essential element of Islam, and its prohibition violates the students’ constitutionally guaranteed freedom of religion. In response to this, supporters of the administration’s actions have argued that college spaces ought to be free of any public displays of religion. This argument was given a fillip when, in some of the colleges, certain Hindu students wore saffron scarves as a seeming response to the demand to be allowed to wear a hijab. Still others have argued that wearing the hijab is not an exercise of genuine free choice, but an imposition of patriarchal structures — which cannot be defended in the vocabulary of freedom. And yet others have argued that in a country where a chief minister can carry a religious title, it is hypocritical to deny Muslim women the right to wear a hijab in public spaces.
Arguments that frame the issue in terms of the hijab and religion, however, miss something important at stake: And that is the power of the State, and of State institutions, to impose a homogenous public culture, and a top-down homogenous idea of what is acceptable in public spaces. And, at a more concrete level, it is also about the power of the State institutions to impose “dress codes” upon adults (some of the students are between the ages of 18 and 20) in a shared public space.
At the outset, it is important to clarify that this is not an argument for an “anything goes” approach to what might be permitted in public spaces. For example, it would be entirely legitimate for State institutions to prohibit clothing with hate speech or violent slogans emblazoned upon it, or language that might be fundamentally inconsistent with the goals of an educational institution. Other instances include symbols that have only one discernible meaning, such as the Nazi logo. Symbols like the Nazi logo may be legitimately prohibited because, in themselves, they are forms of discriminatory speech, and incompatible with the basic constitutional principle of equality.
The important point, however, is that as a social symbol, the hijab does not have one single meaning or interpretation. In certain cases, undoubtedly, it is a manifestation of religious patriarchy, and far more of an imposition than an exercise of free choice. However, to argue that every individual who wears a hijab is brainwashed or coerced is to deny agency to Muslim women as a whole. There exist a whole range of complex — and intersecting — reasons why a person might wear a hijab: As a defence of a beleaguered identity, as a tradition, or many others. Some of those reasons would be grounded in religion, and others would have nothing to do with religion. It would be intrusive — and indeed impossible — for the State to individually probe every person who wears a hijab, and attempt to discern their true reason for doing so.
This brings us back to the core issue: To the extent that the hijab does not — in and of itself — communicate a public message of discrimination, inequality, or violence, what grounds allow the State, and State institutions, to ban it? A final argument that we often hear is that a certain degree of uniformity is required in educational spaces. This, however, is less of an argument, and more a personal preference masquerading as common sense: Is it not equally plausible — and in fact, more persuasive — to say that educational institutions should seek to reflect and mirror the full diversity, pluralism, and heterogeneity of India, rather than attempt to collapse it into a stifling uniformity? Given that our daily lives require us to live together with people who look different from us, wear different clothing, and eat different food, why should those differences be shut out from educational spaces in particular? This, then, is a complete answer to those who seek to rely upon the fig leaf of administrative authority, or the Karnataka government’s order, in order to justify the wholly unjustifiable ban upon the hijab.
For these reasons, the ban on the hijab in colleges is, at its heart, a question of how much power the State can wield over individuals, in deeply personal matters, such as clothing. Our Constitution guarantees to everyone an inviolate “zone of freedom” in such personal matters, as long as the effect of this freedom does not cause harm, or discrimination, at a broader social level. In the case of the hijab, there is no such harm or discrimination; under the law, therefore, the ban should be overturned.
Gautam Bhatia is a Delhi-based advocate
The views expressed are personal
