Indian researchers, activists criticize the ruling on the hijab ban at the school

NEW DELHI (AP) – A recent court ruling confirming a ban on Muslim students wearing headscarves in schools Drew criticism from constitutional scholars and rights activists amid fears of judicial disregard regarding religious freedoms in official secular India.

Although the ban is imposed only in the southern state of Karnataka, critics fear it may serve as a basis for broader restrictions on Islamic expression In a country that has already witnessed a spike in Hindu nationalism under the ruling Bharatiya Janata Party of Prime Minister Narendra Modi.

“With this ruling, the rule you set can restrict the religious freedom of any religion,” said Faisan Mustafa, a researcher on religious freedom and vice chancellor at the University of Nelsar Law in Hyderabad. “The courts do not have to decide what is essential for any religion. By doing so, you give privilege to certain practices over others.”

Proponents of her case have been working to make the actual transcript of this statement available online.

“Institutional discipline must prevail over personal elections. Otherwise, it will cause chaos,” said Advocate Karnataka, Prabholing Navadgi, who argued the state case in court.

Before the verdict more than 700 signatories, including senior lawyers and rights lawyers, expressed opposition to the ban in an open letter to the Supreme Court judge, saying: “Imposing absolute uniformity that violates the autonomy, privacy and dignity of Muslim women is unconstitutional.”

The controversy Beginning in January when a government-run school in the city of Udopi, Karnataka, banned hijab-wearing students from entering classrooms. Staff members said the Muslim headgear contradicted the campus dress code, and that it should be strictly enforced.

Muslims protested, and Hindus staged counter-demonstrations. Soon more schools imposed their own restrictions, prompting the Karnataka government to issue a nationwide ban.

A group of Muslim students sued claiming that their basic rights to education and religion were violated.

However, a three-judge panel, which included a Muslim judge, ruled last month that the Koran does not establish the hijab as an essential Islamic custom and therefore may be restricted to classrooms. The court also said the state government has the power to set uniform guidelines for students as a “reasonable restriction on basic rights.”

“What has not been done is religiously committed, and therefore cannot become an essential aspect of religion through public agitation or by ardent arguments in courts,” the panel wrote.

The judgment relied on what is known as the test of essence – in fact, whether or not a religious practice is binding under this belief. India’s constitution does not make such a distinction, but the courts have used it since the 1950s to resolve disputes over religion.

In 2016, the Supreme Court in the southern state of Kerala ruled that head covering is a religious obligation for Muslims and therefore essential to the Islam being examined; Two years later the Supreme Court of India again used the test to overturn the historic restrictions on the entry of Hindu women of certain ages into the temple in that country, saying it was not an “essential religious practice”.

Critics argue that the substantive test gives courts broad authority in theological matters in which they have little expertise and in which clerics will be more appropriate arbitrators in the faith.

The Supreme Court of India itself is in doubt as to the test. In 2019 she set up a team of nine judges to re-evaluate him, calling his legitimacy on matters of faith “questionable”; The issue is still being examined.

The prosecution in Karnataka cited the Kerala ruling from 2016, but this time the judges came to the opposite conclusion – embarrassing some observers.

“That’s why judges do not translate religious texts that are not so great,” said Anup Surandranath, a professor of constitutional law at the National University of Delhi.

Surandranat said the most logical way to go to court was to apply a test of what Muslim women think is right from a religious point of view: “If wearing a hijab is a true belief of Muslim girls, then why … intervene in it at all faith?”

The ruling was welcomed by senior members of the Bharatiya Janata Party from Mukhtar Abbas Naqwi, the Federal Minister for Minority Affairs, to BC Nagesh, the Minister of Education of Karnataka.

Satya Molly, a lawyer at the Bombay Supreme Court, said it made perfect sense for the justice system to place some restrictions on religious freedoms if they conflict with dress codes, and the ruling would “help maintain order and uniformity in educational institutions”.

“The question is whether this is the constitution, or is religion preferable?” Said Molly. “And the court’s ruling answered just that by preserving the state’s power to impose restrictions on certain freedoms guaranteed by the constitution.”

Surandranat countered that the ruling was flawed because it failed to apply the 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 has not addressed these restrictions, although none of them is justified in banning hijab in schools,” Sorrendernath said. Instead, he emphasized homogeneity in schools, which is the opposite of the diversity and multiculturalism that our constitution maintains. ”

The Karnataka ruling has been appealed to the Supreme Court of India. The plaintiffs sought an expedited hearing on the grounds that the continued ban on the hijab threatens to cause Muslim students to miss an entire school year. The court, however, refused to hold an early hearing.

Muslims make up only 14% of India’s 1.4 billion people, yet constitute the second largest Muslim population in the world for the nation. Historically, the hijab has not been banned or restricted in public space, and women wearing headscarves – like other external expressions of faith, between religions – are common throughout the country.

The controversy has further deepened ethnic lines, and many Muslims fear that hijab bans could encourage Hindu nationalists and pave the way for further restrictions on Islam.

“What if the ban passes nationally?” Said Aisha Hajira Almas, one of the women who appealed the ban in the Karnataka courts. “Millions of Muslim women will suffer.”

Mustafa agreed.

“A hijab for many girls is liberating. It’s a kind of bargain that girls make with conservative families as a way for them to go out and participate in public life,” he said. “The court completely ignored that perspective.”

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The author of the Associated Press Krutika Pathi in New Delhi contributed to this report.

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The Associated Press’s religion coverage receives support through the AP’s collaboration with The Conversation US, with funding from Lilly Endowment Inc. The AP is solely responsible for this content.

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