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Indian scholars and activists have criticized the decision to ban the school hijab

NEW DELHI – A recent court ruling reaffirming the ban on Muslim students wearing veils in schools has drawn criticism from constitutional scholars and rights activists amid fears of excessive judicial exaggeration of religious freedom in officially secular India.

Although the ban was imposed only in the southern state of Karnataka, critics worry it could be used as a basis for broader restrictions on Islamic expression in a country that is already witnessing a rise in Hindu nationalism under Prime Minister Narendra’s ruling Bharatiya Janata party. Fashion.

“With this verdict, the rule you are making can restrict the religious freedom of any religion,” said Fayzan Mustafa, a religious freedom scholar and deputy chancellor at Hyderabad-based Nalsar Law University. “Courts do not have to decide what is essential for every religion. In this way, you give privileges to certain practices over others. “

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Proponents of the decision argue that it confirms the powers of schools to determine dress codes and govern student behavior, and this takes precedence over any religious practice.

“Institutional discipline must prevail over individual choice. Otherwise, it will lead to chaos, “said Karnataka Advocate General Prabhuling Nawaji, who argued the state’s case in court.

Prior to the sentencing, more than 700 signatories, including senior lawyers and human rights defenders, voiced opposition to the ban in an open letter to the court’s chief justice, saying “the imposition of absolute equality runs counter to the autonomy, privacy and dignity of Muslim women.” is unconstitutional. “

The controversy began in January, when a government-run school in the town of Udupi, Karnataka, banned hijab-wearing students from entering classrooms. Officials said Muslim headscarves were in violation of the campus dress code and should be strictly enforced.

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Muslims protested and Hindus staged counter-demonstrations. Soon, more schools imposed their own restrictions, prompting the Karnataka government to ban the country.

A group of Muslim students sued on the grounds that their basic rights to education and religion had been violated.

But a panel of three judges, including a Muslim judge, ruled last month that the Koran did not establish the hijab as a major Islamic practice and could therefore be restricted in classrooms. The court also said that the state government has the power to prescribe uniform guidelines for students as a “reasonable restriction of fundamental rights.”

“What is not religiously binding cannot therefore be turned into a typical aspect of religion through public agitation or passionate litigation in court,” the commission wrote.

The verdict is based on what is known as a test of materiality – mainly whether or not religious practice is mandatory according to this belief. India’s constitution does not make such a distinction, but courts have used it since the 1950s to resolve disputes over religion.

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In 2016, the Supreme Court of the southern state of Kerala ruled that the head covering was a religious obligation for Muslims and was therefore essential to Islam under trial; two years later, India’s Supreme Court again used the test to lift historical restrictions on Hindu women of certain ages entering a temple in the same state, saying it was not a “substantial religious practice.”

Critics say the materiality test gives courts broad power over theological issues when they have little experience and where clergy would be more appropriate arbiters of the faith.

The Supreme Court of India itself doubts the test. In 2019, he set up a nine-judge panel to re-evaluate him, calling his legitimacy on matters of faith “questionable”; the issue is still under consideration.

The Karnataka trial cited Kerala’s 2016 ruling, but this time the judges came to the opposite conclusion – confusing some observers.

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“That’s why judges make not-so-great interpreters of religious texts,” said Anup Surendranat, a professor of constitutional law at the Delhi-based National Law University.

Surendranat said the most sensible way for the court would be to take a test of what Muslim women believe to be true in terms of faith: “If wearing a hijab is a true belief of Muslim girls, then why … intervene do you believe in that at all? ”

The decision was welcomed by Bharatiya Janata party officials from Mukhtar Abbas Naqvi, the Federal Minister for Minorities, to BC Nagesh, the Minister of Education of Karnataka.

Satya Muli, a lawyer at the Bombay Supreme Court, said it was perfectly reasonable for the judiciary to impose some restrictions on religious freedoms if they clashed with clothing codes, and the sentence would “help maintain order and equality in educational institutions”. .

“The question is, is this the constitution, or does religion take precedence?” Mullie said. “And the verdict of the court corresponds exactly to that, maintaining the powers of the state to impose restrictions on certain freedoms, which are guaranteed by the constitution.

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Surendranat argued that the sentence was wrong because it failed to invoke the three “reasonable restrictions” under the constitution that allow the state to interfere with religious freedom – for reasons of public order, morality or health.

“The court did not invoke these restrictions, although none of them justified justifying banning hijabs in schools,” Surendranat said. “Rather, he emphasized the homogeneity of schools, which is the opposite of the diversity and multiculturalism that our constitution upholds.

Karnataka’s decision was appealed to the Supreme Court of India. The plaintiffs demanded an expedited hearing on the grounds that the continued hijab ban threatens to make Muslim students lose an entire academic year. However, the court refused to hold an early hearing.

Muslims make up only 14% of India’s 1.4 billion people, yet they represent the world’s second-largest Muslim population. The hijab has not historically been banned or restricted in the public sphere, and women who wear headscarves – like other outward expressions of faith in various religions – are common throughout the country.

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The dispute has further deepened sectarian dividing lines, and many Muslims worry that hijab bans could encourage Hindu nationalists and pave the way for more restrictions on Islam.

“What if the ban becomes national?” Said Ayesha Hajira Almas, one of the women who challenged the ban in Karnataka courts. “Millions of Muslim women will suffer.”

Mustafa agreed.

“The hijab is liberating for many girls. “It’s a kind of lucrative deal that girls make with conservative families as a way to go out and participate in public life,” he said. “The court completely ignored this view.”

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The Associated Press author Krutica Patti of New Delhi contributed to this report.

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Religious coverage of the Associated Press is supported by AP’s collaboration with The Conversation US, funded by Lilly Endowment Inc. AP is solely responsible for this content.

Copyright 2022 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed without permission.

Indian scholars and activists have criticized the decision to ban the school hijab

Source link Indian scholars and activists have criticized the decision to ban the school hijab

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