Hijab controversy: time to reflect


Hijab controversy: time to reflect

SK Srivastava

The right to education is “subject to such manner as the state may by law determine”. Schools are governed by rules and regulations and set a curriculum for all to follow. There is an increase in the literacy rate and widespread awareness of education in all fields. Education is about awakening intelligence, critical thinking, reflection and reform. While there is evidence of social prosperity even among the socio-economically weaker part of society, but those who are restrictive with patriarchal, orthodox and identity mindsets are lagging behind. The recent hijab controversy, however, provides an opportunity to reflect, in this 75th year of independence, on the constitutional rights of equality and liberty for all citizens of India. According to article 14 of the constitution, the State ensures the equality of all before the law and the rights govern the relations between the State and the citizen. It prohibits the state from discriminating against citizens “on the grounds of religion, race, caste, sex, place of birth and any of these”. Positive actions showed social mobility results but normatively unjustified promotional or communal quotas hindered equality. General and reserve categorization creates identity fracture, creamy diaper abuse, concessions to minority institutions and ballot-banking politics, degraded public educational institutions and an increase in private institutions. These factors undermine the desired goal of equality and also dilute the vision of social justice.

Liberty gives liberty rights through section 19, but with “reasonable limitations” that vary by liberty in question and are not absolute in our rules-based democratic society. Article 25 gives the right to “freedom of conscience and…. to profess, practice and propagate a religion” essential to a religion, as determined by the constitution rather than by a religious group. But religious freedom rights end with modern democratic secular principles, limiting the external regulation of religion. Indian secularism is neither neutral vis-à-vis religions like the United States, nor indifferent, but promotes the coexistence of religions (positive secularism). Unfortunately, secularism is reduced to empty rhetoric as religion is used even by self-proclaimed secularists. With regard to religious freedom, separate individual family laws for different religious groups on the grounds of unequal gender norms have long been criticized. They are undemocratic. Personal laws are made by the only source of authority, Parliament. Article 44 calls on the State to move towards the creation of a uniform civil code to remove the asymmetry. Asymmetrical positive measures based on caste or religion must be addressed. All publicly funded educational institutions must have common rules, regulations and curriculum. Assam has ceased state funding of institutions providing only religious education. Every individual above caste or creed has value, therefore any measure should not be viewed across the minority-majority divide. It is time to standardize the civil code to arrive at normative uniformity under a single order where differential rights have no legitimacy. Faith-based ideas and religious beliefs may be incorporated as content but without legitimacy. This will help diffuse divisive ego and identity, maintain equality, and strengthen the sense of common nationality. When talking about rights, it is imperative to be aware of the duties as a citizen to maintain and promote the harmony, unity and integrity of India, transcending religious, linguistic, regional and sectoral. The courts have the power to assess what is essential and what is not, hence the power to rationalize. Thus, the courts rationalize, reform and disallow the misrepresentation of religion while respecting the rule of law and reminding citizens of their fundamental rights. The court’s verdict on the hijab controversy must be accepted by all for individual, social and national prosperity.

(The author is a consultant surgeon based in Delhi. Opinions expressed are personal.)

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