The Dilemma of Hijabs

We all know that head coverings worn by women belonging to the Muslim community are known as Hijabs. But the term “Hijab” essentially denotes a partition as mentioned in the Quran. However, what most people don’t know is that the Hijab is currently banned in; Austria, Bosnia, Herzegovina, Canada, France, Kazakhstan, Kosovo, Kyrgyzstan, Russia, and Uzbekistan. On the other hand, it is compulsory for women to wear a hijab in Iran, Iraq, Saudi Arabia, and Afghanistan.  Having such contradictory situations in the real and practical world gives birth to a lot of questions.

1. What should be valued more - essential religious practice doctrine or the right to choose?

2. Should a woman be killed just because her hijab was a little loose or she chose to not wear it?

3. Should a girl be deprived of education just because she wore a hijab?

4. Is culture and religion more important than the life and education of a woman?

5. Why are we losing respect for the diversity present in the world by promoting intolerance, for example by symbolizing hijabis as terrorists?

Let's look at two case studies of two different countries, Iran and India. While hijab is compulsory in Iran, it is on the verge of getting banned in the educational institutions of India. Both situations are not applaud worthy because women are targeted, tortured and even killed if they don’t wear a hijab. At the same time, in the latter scenario, they are denied education if they wear them. 

Women who don't wear a hijab in Iran may be sentenced to ten days to two months in prison along with fines, according to the Islamic Penal Code. Such laws show us that culture and religion are preferred over principles of freedom and equality. Women of Iran have been protesting against this compulsion for years. These protests are constantly shut down by the government with the use of force. Several women are tortured immensely who disobey the laws regarding the compulsion of hijabs. Recently, the protests got aggravated after the custodial death of Mahsa Amini, a 22-year-old lady who was arrested for improperly wearing a hijab. Does not wearing a hijab deserve such a gruesome punishment of death? Following the country’s chosen culture and religion is more important than someone’s life. Why is religion given more importance than the basic rights of humans namely security, equality and liberty?  Even in India, women in Srinagar, Jammu and Kashmir were attacked with acid by a group called Lashkar-e-Jabbar for not wearing Hijabs. Should such atrocities against women be allowed just because of a piece of cloth?

Moving on to the subsequent case study, some Muslim students in Karnataka had a dispute with their university in February 2022. Due to the hijab's violation of the college's uniform code, the junior college refused to allow Muslim students to enter the building while wearing one. The Karnataka government passed an order on February 5 declaring that uniforms ought to be worn compulsorily when policies exist and that the wearing of the hijab is not an exception. Numerous educational institutions used this directive as justification to bar Muslim girls donning the hijab from entering. The students who were dissatisfied with the circumstances petitioned the Karnataka High Court.

The court's ruling, which upheld the hijab restrictions, was delivered on March 15, 2022, after a hearing that spanned close to 23 hours over a period of 11 days. According to the court, wearing a headscarf is not a requirement for practising Islam. The High Court panel led by Chief Justice Ritu Raj Awasthi had ruled in a 129-page decision that the Islamic holy book, the Quran, does not require women to wear the hijab and that it is not a religious end in itself, serving at the most as a way for women to enter public spaces and a "measure of social security." Additionally, it advocated for a quick and efficient probe into what had sparked the hijab debate in Karnataka, believing that there might be unseen forces at work to construct social discord and conflict in the state. The supreme court heard the matter. On October 13, 2022, the Supreme Court issued a split decision about petitions opposing the Karnataka High Court's decision on the hijab issue. Justice Sudhanshu Dhulia granted the appeals against the Karnataka High Court judgement, but Justice Hemant Gupta rejected them. Wearing a hijab is essentially a question of preference, according to Justice Dhulia, who claimed that the Karnataka HC has gone in the wrong direction. Additionally, he stated that the education of young girls, particularly in rural regions, was his main priority. The top court ordered that the appeals be brought before the Chief Justice of India in order to form a larger bench due to the

"divergence of opinion"; in the case. We have to pray that the right to choose will be taken into account by the judgment that is rendered.

The whole fallacy centres on one and only one mistake and that is “Ignoring the women’s perspective”. Instead of focusing on the females’ needs and wishes, the law focuses on religion.  In Iran, under the pretense of propagating Islam and rebelling against Western ideology, women are dominated. Several atrocities are committed against women and women are seen as animals that can be tamed with force. Women are being tied down by these laws so as to restrict power to only some hands. It’s high time that women’s rights are given more priority than the principles of religion. Sadly, this can only happen in Iran when power is

transferred to a feminist personality.

I completely concur with Justice Sudhanshu Dhulia's viewpoint in the context of India. A pre-university student's privacy and dignity are violated if her hijab is required to be removed at the school entrance. Girls shouldn't be barred from attending school only because they are wearing hijabs because they have already endured years of tyranny and denial of an education. Many of these girls come from religious and orthodox households, and their families only permit them to attend school if they do what they are told, which is typically to wear hijabs. In such circumstances, stopping a student's education would damage many lives.

Therefore Justice Sudhanshu Dhulia’s statements like, “Are we making a girl child's life any better by banning hijab?”; “How is hijab against public order, morality or health?”; “Reasonable accommodation is a sign of mature society”; “Discipline not at the cost of dignity”; “ Girl's right to wear a hijab does not stop at school gate”; “Constitution a document of the trust reposed by the minority on the majority”; “School education is the time where students realize diversity is our strength” and “Wearing of hijab simply a matter of choice” should be pondered upon.

Thus, to better the lives of thousands of Muslim women, we should prioritize their rights instead of focusing on the essential religious practice doctrine. It is high time to stop treating women like inferior subjects and give them the freedom to choose in its truest sense. The day this happens the lives of several women will be elated. Till then women need to continue to oppose and bring shifts in perspectives. Only then will the laws become more inclusive of their rights.

Authored By: Suhasini Thakur

Maharashtra National Law University, Mumbai