JOIN USSchool as a laboratory
The recent judgement of the Karnataka High Court upholding the ban on Muslim women wearing the hijab in educational institutions has decidedly far-reaching implications. Chief among them is the role of culture as a foundation of moral learning, and freedom and inclusion in the classroom. Not only did the court appoint itself as Islamic theologians but it also acted as social reformers, emancipating the lot against their own wishes.
Two distinct points may be elicited in response to the judgement. First, the judgement fails not only in properly applying the essential practices test, but it perpetuates a faulty standard for comprehending lived practices. Second, the judgement effectively converts schools into an insulated and amoral environment where the forcible elimination of individualities and differences is made into a qualification for national membership.
Enigma of the ‘essential religious practice’ test: The court held that wearing the hijab does not constitute an essential religious practice in Islam under Article 25 (1) of the Constitution, which guarantees all persons the fundamental right to freely practise, profess and propagate religion. It relied on cursory textual references of select authorities on Muslim law to conclude that the rule of wearing the hijab was not absolute but only recommendatory in the Quran.
The irony of the judgement is that it begins and elsewhere relies on an article by someone named Sara Slininger, when, in fact, the said article questioned stereotypes around the hijab and provided a nuanced argument about seeing it as a religious-cultural practice, something the court haphazardly deploys in its support. At a close look, the doctrine of essential practices test includes within its ambit not simply doctrines and beliefs, but practices.
Speaking on the Shirur Mutt case, Justice Mukherjea observed that the performance of rites, rituals, ceremonies and dress, all can be integral parts of religion as observed by the community. Outward acts are as much an essential part of religion as held in the Ananda Margi case, where the performance of Tandava dance and carrying religious symbols in public, was seen as both social as well as religious in nature. Both the Triple Talaq and Sabarimala cases had struck down practices on the ground, among others, that they violated reasonable restrictions under Article 25(2), namely: public order, health and morality, and importantly, fundamental rights (of women). However, no such legal contentions are germane in this case.
The essential practice test leads to a specious distinction between religion and culture. The circular reasoning is evinced in the way courts construe ‘practice’ not from the practitioners’ point of view, but by interpreting texts and doctrines. In this connection, can there be a categorical demarcation between practice as religious in character and that which is purely cultural, based on two kinds of mental intentions of agents?
The court here noted that the women in question had not been wearing the hijab, it was ‘militantly absent’ before they joined the institution. This raises the question: why is the length of time that the petitioners were wearing the hijab of any significance? It points to the crucial distinction made in the judgement between what is essential or compulsory in contrast to what is merely recommendatory or optional. The court noted: ‘What is not religiously made obligatory therefore cannot be made a quintessential aspect of the religion through public agitations or by the passionate arguments in courts.’ The mythical search for any essential element presumes that there is one canonical source from which everything about the religion can be explained.
Rites and rituals
Let us take the example of funeral rites and death rituals performed for the duration of 13 days after a death in a Hindu household. Insofar as this samskara ticks the box of ‘essential religious practice,’ however, do these families compulsorily perform all rituals? Will the non-observance, either completely or partly, vitiate either the rule or its practitioners? In short, the tendency to read practices like a rulebook and locate individuals as exemplary manifesters of abstract tenets of the faith is a case of making every individual into a pujari or saint.
The problem with the essential practices test is that it forces claimants to prove the practice forms a relevant core of the religion, thus rigidifying it and limiting our understanding of the variety of ways in which people inhabit religious lives. There is nothing so ‘essential’ or inessential in any practice, and the reality is that these are individually stylised and adjusted in relation to time, place and situation.
Schools as the laboratory of power: In the context of its discussion on school uniforms, the court underlines several contradictory justifications. It makes a decisive claim that schools are not places to expose children to differences and must instead be a ‘safe space’, promoting what it fashions as scientific and secular values. Unsurprisingly, the court then categorises schools as a ‘qualified public place’ analogous
to courts, war rooms and defence camps.
It sees the schools as a place to instil aggression and military-style discipline over intellectual and artistic exploration. Children are castigated as incapable of thinking for themselves and needing substituted judgement. In summary, the court’s line of this reasoning suggests that the girls can wear the hijab outside but not in the classroom, leading to a strange situation where students can encounter differences in the outside world of which they will have no engagement in their learning environment.
The hijab judgement points to the impossibility of imagining moral lives outside rulebooks. The court’s reasoning is a model of cultural alienation, removing any scope of mutual learning when people of different communities interact. Among the many things wrong in this judgement, its legal overreach and stereotypes, it projects the paranoia of a nation above everything else.
(The writer teaches political philosophy and ethics at O P Jindal Global University)