Liberalism, secularism and human rights
regime put to question
The ban on hijab in colleges in the southern Indian state of Karnataka has triggered a major row amid growing concerns that the attacks on Muslim symbols and practices are part of the larger Hindu far-right agenda of imposing majoritarian values on minorities. The Bharatiya Janata Party (BJP), which runs governments in Karnataka as well as at the centre, has backed the discriminatory ban. The BJP has for decades campaigned for the application of a Uniform Civil Code (UCC), which minorities believe would be tantamount to the imposition of Hindu laws.
The hijab ban is the latest example of Indian authorities increasingly seeking to marginalize Muslims, exposing them to heightened violence. The state government and the colleges have stuck to their argument that a dress code must be followed and that religious clothing does not have a place in an educational institution, which depends of “equality and uniformity”. However, India’s 200 million Muslims fear the ban on hijab violates their religious freedom guaranteed under India’s constitution. It must also be mentioned here that the hijab ban violates India’s obligations under international human rights law, which guarantees the rights to freely manifest one’s religious beliefs, to freedom of expression, and to education without discrimination. Even the United States condemned this move and said that the ban on wearing hijabs in the schools in Karnataka violated religious freedom. “Religious freedom includes the ability to choose one’s religious attire,” Rashad Hussain, the US Ambassador-at-Large for International Religious Freedom, tweeted.
Hijab is a garment worn by Muslim women across the world as a religious obligation. But many educational institutions in a number of countries do not allow students to wear hijab when in the campus. Even where hijab is not legally banned, intolerance towards this particular mode of dressing seems to have gradually increased. Justification for banning hijab ranges from protecting the ‘liberal’ and ‘secular’ feature of the state to guaranteeing gender equality. Consequently, the question arises whether the principles of liberalism, secularism and human rights justify banning hijab.
Freedom, rights and equality are the foundation of liberalism, and the idea of liberalism prohibits sanctioning any act unless it causes harm to others. It advocates for the highest possible personal autonomy. Wearing hijab is simply a matter of personal choice regarding the way someone wants to dress up. In order to ban a particular mode of dressing, as per liberal view, a set of indisputable facts and rationale must be established that veiling causes harm to others. Mere worries and imaginary fear do not meet the requirement. Hijab may offend those who do not like it but it is not ‘offensive’. Difference between ‘being offended’ and ‘offensive’ can be better understood in terms of ‘free speech’, where one particular statement may offend many even though the statement does not amount to offence. Judge Tulkens, the lone dissenter, held a similar view in Shahin v Turkey.
The argument that Muslim women wearing the hijab may compel others to do so is not satisfactory since there is no supporting evidence for such claim. One argument against hijab is that wearing hijab indicates that women are subjugated. If so, how can a subjugated person force values to another independent person? Contrarily, women who wear hijab may face humiliation, abuse and discrimination for their choice of dressing. It begins as ‘micro-aggression’ and later on results in violent abuse and greater discrimination.
A liberal state is supposed to be neutral. The hijab debate is as simple as that – a group is fighting for the right to wear it and another group is fighting for not to wear it. Both camps are exercising a harmless practice based on free choice. No liberal state can take a side in this debate. The state should maintain equidistance from both sides but ensure that no one can force their choice onto the unwilling. When a public authority bans hijab, it suggests that the state wants a particular form of apparel to be worn. This attitude is destructive to the core values of liberalism.
Secularism means public affairs must be separated from religious dictation. Secularism has two dimensions: first, ‘liberal secularism’ which allows people to manifest her religious conviction in public sphere; and secondly, ‘fundamentalist secularism’ which prohibits religious expression in public and relegates religious freedom to the private domain. Fundamentalist secular view fails to appreciate the distinction between those who merely wear hijab and those who forces it to others. When hijab is banned for protecting secular environment, secular framework seems unable to accommodate the women who want to veil themselves out of free choice. Such stringent form of secularism undermines multiculturalism and promotes intolerance towards some particular cultural and religious values.
Human rights regime seems somewhat confused in balancing between liberal democratic values of freedom of religion and keeping educational institutions free from religious symbolism. Eurocentric interpretation of human rights favours banning hijab for the sake of its secular identity at the cost of outright abandonment of religious freedom. A group of human right scholars argues that most women wear hijab due to coercion and suggest banning it for ensuring liberation of women. But the truth is that educated, empowered women also wear hijab out of free choice. Banning underestimates their autonomy and dignity. Thus, banning hijab is equally paternalistic and coercive as much as compelling one to wear it.
Gender equality argument appears as a popular justification against the right to wear hijab. Arguments for banning hijab is mostly based on the stereotype that all Muslim women are oppressed, dominated and subjugated by their male family members and they are coerced into wearing the hijab. Therefore, ban is necessary for emancipation of oppressed women. But do the women who veil themselves out of free will still need emancipation? Can the removal of certain garments play an emancipatory role? How does wearing hijab infringe equality? If hijab is held responsible for gender discrimination, a universal ban operating both in public and private sphere seems justified. Contrarily, ban on hijab can be counterproductive. Where women are forced to cover themselves upon religious dictation, parents may allow them to go to school if schools allow her covering herself. But if the school forces her to unveil, parents may prevent them from getting education. Education and financial independence should be the top-priority for women liberation. Hence, can ‘unveiling’ be an essential prerequisite for getting education or ensuring equality?