Hijab: A matter of individual privacy

In the eternal debate between the left and the right, the humble headscarf has now made a spectacular entry. Though such a garment is worn by women of different communities, at present, Muslims are at the centre of the discourse. But while public opinion has largely become obsessed with the theme of the right of religion versus the right of institutions to prescribe a dress code, we must not lose sight of the question of what a Muslim woman wants when it comes to the headscarf.

The right to wear the headscarf or the duty to wear one (which is a culturally agnostic phenomenon prevalent even among Christian nuns), in Islam, which lies at the centre of the essential religious practice/ fundamental right to religion argument, must be first understood in all its complexities. The Quran only prescribes modest attire and specifically in Surah 24:31, the genitals and the breasts are required to be covered. The Hijab is specifically found in the Hadiths.

However, even among Muslim jurists, the Hadiths remain a controversial source of law, for many reasons. When the hadiths were tested in the case dealing with the Triple Talaq, the Supreme Court proceeded to strike down the Triple Talaq, though the Triple Talaq was based on the Hadiths citing their controversial nature. For the same reason, the argument advocating for the Hijab on the ground of Hadiths is unlikely to succeed.

The issue needs to be examined from a larger perspective of individual privacy, explained in the Justice Puttaswamy v. Union of India verdict. The right of privacy stands on the pillar of three concepts, bodily autonomy (my body, my choice), integrity (right to the wholesomeness of body and mind free of hurt and damage) and boundaries (abstract lines we draw to preserve our autonomy and integrity).

Unless compelling state interests (such as public health and prevention of crime), expressed through laws that are in consonance with Part III of the Constitution (fundamental rights) are adversely affected, choices which are the product of our autonomy can be arbitrary, need not be explained and remains unassailable. In the eye of the law, dignity and privacy are intricately connected and therefore a woman’s right to attire, unless contrary to the aforesaid concept of compelling state interests, remains unassailable whether at the hands of the state or at the hands of third parties.

This is best exemplified by the Sexual Harassment (Prevention, Prohibition and Redressal) Act, 2013, where remarks on a woman’s attire, even if not sexually coloured, can still qualify as insulting or humiliating treatment rising to the level of sexual harassment because the author of the remarks assumed a level of proximity to the woman and a corresponding right to breach her boundaries and threaten her integrity, which the woman has not consented to. The law does allow the workplace, which includes an educational institution to prescribe a dress code.

But that dress code must promote a woman’s right to protect her modesty and not undermine it. If a Muslim girl associates her head and her neck with a notion of modesty not unlike what most women associate with their breasts and genitals, the law or for that matter any person, cannot and should not stipulate otherwise. This lies at the essence of the legal and human rights controversy around the Hijab.

Furthermore, because the Hijab controversy follows the Justice Puttaswamy verdict, the issue has to be adjudicated afresh and cannot be decided through case laws, such as the Bijoe Emmanuel vs. State of Kerala judgement, rendered prior to privacy becoming such a critical component of our human rights jurisprudence.

No matter which side of the opinion spectrum one lies in, we would be doing a great disservice to the cause of emancipation of women, especially from minority groups, if we examine the issue only from a religious angle. Since historically, religion does not have the distinction of being universally kind to the rights of women, it remains a weak ally in the effort to resolve the controversy.

In a society where girls often accede to demands of how they must be attired made of them at home and within the community just to access education, creating an opposing set of demands at the educational institution risks their right to self-development and education. However we choose to decide this issue, let us not lose our empathy for the Muslim girl trying to be the best she can be.

(The writer is a Bengaluru-based advocate)