Karnataka high court has upheld the government’s orders on the ban on wearing hijab (headscarf) by Muslim girls in school/college etc., places. In its verdict the high court said,
India’s Karnataka state has ruled that the hijab is not “essential” to Islam.
The three-judge bench held that allowing Muslim women to wear the hijab in classrooms would hinder their emancipation and go against the constitutional spirit of “positive secularism”.
“There is sufficient intrinsic material within the scripture itself to support the view that wearing hijab has been only recommendatory, if at all it is. 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 court,” the order says.
The court, however, said the order was valid, holding that the government had the right to prescribe uniforms for students.
There are many delicate issues involved here. The implications of this decision are far and wide for the future of the Indian nation state and we must discuss these issues and their implications.
First, do governments have any right to prescribe uniforms for students? Second, is it the job of the state judiciary system to determine what is essential and not essential to any religion? Third, is it judiciary’s job to do women’s emancipation? What is this constitutional spirit of “positive secularism”? Let us discuss these one by one. After discussing these questions I will discuss the real issue involved in this whole matter which everyone is forgetting. In the end I will also present the solution to this problem of hijab ban.
Do governments have any right to prescribe uniforms for students?
According to mainstream reasoning the government is a negative force created by people to safeguard their lives from any physical harm done either by society’s members to each other or from outsiders. It is a collective force created by members to defend their fundamental rights to life, liberty, and property. Therefore it is none of government’s business to enact any positive legislation like the hijab ban. As Frederic Bastiat said,
When law and force keep a person within the bounds of justice, they impose nothing but a mere negation. They oblige him only to abstain from harming others. They violate neither his personality, his liberty, nor his property. They safeguard all these. . . But when the law, by means of its necessary agent ,force, imposes upon men a regulation of labour, a method or a subject of education, a religious faith or creed — then the law is no longer negative; it acts positively upon people. (The Law, Frederick Bastiat)
Even constitutionally speaking, nowhere does the Indian constitution say that government can tell people what they should wear or not. I do not know where in the Indian constitution it says that the government has the right to prescribe uniforms to students. Can these judges give us an exact quote from the constitution where this right (sic) is clearly mentioned?
Then in reality this whole idea of ‘government as our protector’ is a ruse created over the years by government officials and its supporters to legitimize their illegitimate rule of using violence against people to rob and kill them to live parasitically. All governments historically came into existence via conquest of peaceful people by a gang of marauders. As Murray Rothbard said,
We are now in a position to answer more fully the question: what is the State? The State, in the words of Oppenheimer, is the “organization of the political means”; it is the systematization of the predatory process over a given territory. For crime, at best, is sporadic and uncertain; the parasitism is ephemeral, and the coercive, parasitic lifeline may be cut off at any time by the resistance of the victims. The State provides a legal, orderly, systematic channel for the predation of private property; it renders certain, secure, and relatively “peaceful” the lifeline of the parasitic caste in society. Since production must always precede predation, the free market is anterior to the State. The State has never been created by a “social contract”; it has always been born in conquest and exploitation. (Source: Anatomy of the State, pp. 15-16)
Both from the perspective of theory and history government has no right to ban hijab or legislate any positive action like the hijab ban.
Is it the job of the state judiciary system to determine what is essential and not essential to any religion?
The role of the judiciary system in any state is to interpret the law and see whether government legislation adheres to the law of the land, i.e., the constitution. Their job is to deliver justice and nothing else. It is none of their business to determine whether some religious practice is essential to that religion or not. That job is left to the scholars of that religion. In this case it is the job of the Islamic jurisprudence scholars, i.e., Ulema, to determine whether wearing a hijab is essential to Islam or not. Interpretation of the Quran is not any Indian judiciary’s job. Any interference of courts in internal matters of religion will have far reaching implications e.g., imagine in 2024 an Islamic government comes to power in India and their courts determine that it is illegal for Indian women to wear a mangalsutra and sindoor. How would Hindus feel then? By allowing courts to interfere in internal matters of religions like this, they are opening a Pandora’s Box and what comes out of it in the future may not be liked by the majority of Indians. It is always necessary to keep state and religion separate. When you mix them together, it brings society to its knees.
Moreover the Indian constitution says,
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a 1 [SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC] and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the 2[unity and integrity of the Nation];
Against this the Karnataka education minister has now said,
Strict action will be taken against educational institutions if they force students to remove tilak, kumkum, bindi etc.
kumkum, sindhur and bindi are our cultural identities, they are used as ornaments, and they can’t be compared with the hijab
This directly goes against the Indian constitution which says,
Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.—(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—
1. Ins. by the Constitution (Twenty-fourth Amendment) Act, 1971, s. 2 (w.e.f. 5-11-1971). 37
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
What the BJP government in Karnataka is doing is directly against the Indian constitution, and instead of throwing out the Hijab ban the high court has affirmed it. Affirming such legislation means judiciary is participating in the injustices of the government instead of correcting them. Instead of promoting fraternity among citizens, BJP government and Karnataka high court are busy dividing them and creating a civil war kind of situation in India.
Is it judiciary’s job to do women’s emancipation?
Judiciary’s only role is to see if person’s human rights are violated or not i.e., if any injustice is done or not and then to correct the injustice and deliver justice. Nation state’s constitution is a document, designed by its citizens, that binds government in its limits of protecting the God/nature given rights of its citizen. It is popularly believed that citizens have rights because the constitution gives them these rights, but nothing can be more further from the truth. As Frederic Bastiat said,
Life, liberty and property do not exist because men have made laws. On the contrary, it is the fact that life, liberty and property existed beforehand that caused men to make laws in the first place. (Source: The Law)
This means that it is none of judiciary’s business to carry out women’s emancipation! Their job is to deliver justice, period.
What is the constitutional spirit of “positive secularism”?
If India is a sovereign secular socialist democratic republic then it is imperative that the state be kept separate from religion, and in that case state governments have no right to ban hijab. Banning hijab is a violation of constitution’s positive secular spirit. If banning hijab is maintaining the secular spirt of the constitution then government should ban all religions from India!
Real issue and the solution
The real issue here is the attack of government on fundamental human rights. Human rights are private property rights and self ownership is the first form of private property. As Murray Rothbard said,
The human right of every man to his own life implies the right to find and transform resources: to produce that which sustains and advances life. That product is a man’s property. That is why property rights are foremost among human rights and why any loss of one endangers the others. For example, how can the human right of freedom of the press be preserved if the government owns all the newsprint and has the power to decide who may use it and how much? The human right of a free press depends on the human right of private property in newsprint and in the other essentials for newspaper production.
In short, there is no conflict of rights here because property rights are themselves human rights. What is more, human rights are also property rights! There are several aspects of this important truth. In the first place, each individual, according to our understanding of the natural order of things, is the owner of himself, the ruler of his own person. Preservation of this self-ownership is essential for the proper development and well-being of man. The human rights of the person are, in effect, a recognition of each man’s inalienable property right over his own being; and from this property right stems his right to the material goods that he has produced. A man’s right to personal freedom, then, is his property right in himself.
Every individual is sovereign and free to wear whatever they want to. States have no right to prescribe any uniform for anyone, period.
The hijab ban can now easily be solved by privatizing the Indian nation state. If a private school doesn’t allow a particular kind of dress in its premises then it is not a violation of any human right. Everyone has a freedom of association and disassociation in a private law society where the state does not exist. If some institution or organization does not want to associate itself with a particular group of people then it has those rights. The problem of Indian nation state is lack of private property rights. By Constitution it is a socialist state and that is the reason why conflicts are going to take place continuously, and these conflicts will one day destroy this nation state. Private property rights are the fundamental foundation for the peaceful organization of any society. In a society where these rights do not exist and/or are replaced by public or common property rights, conflicts are going to be a daily occurrence. The prime objective in the organization of any human society is avoidance of this conflict, but the socialist pattern of society, which India has, is fundamentally contradictory to this prime objective. This is the reason why Indian society will disintegrate one day. Hijab ban is just one small step in that direction of disintegration.