What the SC must see about hijab that HC didn't

The Constitution of India is a secular document. It does not declare a state religion, provides everyone the freedom to profess, practise and propagate their religion and prevents the state from discriminating on religious grounds. Yet, the pages of the original Constitution now encased in Parliament which contains these secular precepts are adorned with beautiful artwork featuring Ram, Lakshman, Sita, Krishn, Mahavir, Gautam Buddha, Guru Gobind Singh, Akbar amongst a host of Indian cultural, religious and historical icons. It is at once a celebration of India’s history, its religiosity, its achievements over time. Nandalal Bose of Shantiniketan found no contradiction in embellishing a secular document with artwork that included religious figures. Rabindranath, the founder of Visva Bharati where Nandalal honed his craft, himself had compared India to a pot of holy water “purified by the touch of a myriad religions and races”. Religion has never been a purely private matter in India. Religious imagery is commonplace, religious rituals commonly performed publicly, for many, religious beliefs are the cornerstone of the nation itself. So, when it came to the Constitution, it was natural that religious figures were not unnaturally excluded from its illustrations. The text of the Constitution too echoed this understanding of religion. Article 25 of the Constitution allows everyone the freedom to not only profess and practise but also propagate their religion. Propagation necessarily is a public activity. In fact, the word was specifically included so that several religious faiths including the Arya Samajis could preach their religious beliefs openly. This right to propagate was never considered a threat to the nation but rather as TT Krishnamachari said in the Constituent Assembly, “(a matter of) giving the right to every religionist, if he felt that it is a thing that he had to do … (as his) duty towards his God and his community”. The Karnataka high court in upholding the order of the Karnataka government to prevent the wearing of the hijab in classrooms has entirely misunderstood the nature of Indian secularism. The legal question is neither about whether wearing the hijab is an essential religious practice in Islam, nor about whether governments can prescribe uniforms for students. medium90275768 The question is on what grounds can governments restrict persons from exercising their free choice to wear the clothes they want, whatever be their reasons for wanting to wear them. The Constitution is clear – these grounds have to be limited to public order, morality, health or any other fundamental right in the Constitution. When it comes to the hijab, which is a purely self-regarding activity, no case can be made out that the requirement of a uniform flows from any of these grounds. The court’s order is unsurprisingly muted on this issue. Instead, the justificatory heavy lifting is done by the court’s implicit insistence that secularism and privatisation of religious expression are one and the same thing. This is a cardinal error. Secularism means that the state should not impose any religious authority on our lives. But to say that political power must not align with any particular religious belief is not to say that the public sphere itself cannot be deeply religious. If the Indian public sphere is to retain its Indianness, it must protect this sphere from the artifice of a coerced sameness. What it means to be Indian is to feel secure and comfortable in our own skin, not only in our own homes, but also when we step out, without having educators and judges dictate how we express ourselves. The young hijab-clad women are not imposing themselves on anyone, but being imposed upon in the name of an unfortunate and foreign understanding of secularism designed to create sterile and lifeless public spaces shorn of vitality, individuality and life itself. Today it’s the hijab, tomorrow it may be the burqa, but a day will come if the Constitution is read in this misguided fashion that it will be the mangal sutra, the angavastram or the vibhuti that is prohibited from the public sphere. The court forgets that India’s civilisational strength has been its unique jugalbandi of religious expression and liberalism. Our country has birthed and housed a dizzying diversity of religious faiths, mingling with each other largely in an environment of security and trust. This, and not a “keep it at home” brand of secularism, is what we need. Like Abkar, and Chandragupta before him, we must celebrate our religious diversity, not make it invisible. It is especially schools and colleges as intimate spaces where different communities live and learn together that should foster diversity. Our differences do not lead to “social separateness” as HC fears. On the contrary, a public sphere anaesthetised of all religions, which tells students that a core part of their identity is not welcome in the college, does precisely that. It is this attitude, which the judgment unwittingly endorses, that sows distrust and hardens religious differences. If India is to realise a semblance of fraternity in the next generation, its youth must experience what difference looks and feels like in close quarters, sitting on the bench next to them in class. When the Supreme Court hears this case, we hope they remember that a secure and confident nation with a secular Constitution does not need to be afraid of religion, but embrace it. India is and can be religiously secular. Arghya Sengupta is Research Director, Vidhi Centre for Legal Policy. Raag Yadava teaches at NLSIU, Bangalore. Views are personal Illustration by Ajit Ninan