Justice Gupta would have been better off excusing himself from a subject “not known” to him.

By Sayyeda Maryam Ziya

Women’s clothing has become a subject of public debate yet again. This time, it is the humble hijab, a piece of clothing that is supposed to cover a woman’s head but has ended up exposing many a prejudiced mind. The split verdict delivered by the two Supreme Court Judges, Justices Hemant Gupta and Sudhanshu Dhulia, on the subject brings us back to square one.

The interpretation of the law and the words chosen to express their opinions made one feel like watching a tug of war between two honourable men, one claiming to uphold uniformity and discipline and the other basing his arguments on the girl child’s right to education. What seemed missing in this long debate of choice, freedom of religion, attainment of education and secularism was an imperative question on the inclusion of women’s narrative. It was a question of hijab and girls seeking to attend classes with their heads covered. Yet, we had two men sitting on judgment in the case. With all their merit and vast experience, a man can never understand what a woman goes through, he can at best imagine.

Even Justice Gupta confessed, “In my order, I have framed 11 questions. The answers to all these questions, according to me, are against the appellants. I am proposing to dismiss the appeals. But before parting, I must thank all of the counsel who have assisted heavily on a subject which is not known to me.”

Not only was Justice Gupta self-confessedly ignorant of Islamic provisions of Hijab, he was also unable to imagine the plight of a girl used to wearing hijab in public suddenly having to take it off. For many girls being seen without hijab by unknown men is often akin to being stripped of clothes altogether. As many of the women in the country will agree, across religions women do not like to be seen without a scarf, dupatta or a sari’s pallu covering their head when they appear in front of older male members of the family. Call it upbringing, value system or whatever, but only women would understand why they do what they do. Think of Justice Gupta’s statement as a girl, not even a Muslim girl, and you will understand why a girl would not be so thrilled with the judge’s admission of deciding on a “subject which is not known to me”. He would have been better off excusing himself from a subject “not known” to him.

Instead of two senior men sitting in judgment on hijab, would it not have been better to have a woman judge in the case? Unfortunately, that was not the case. And women who actually speak from participation and practice felt unheard, and uncared for.  Just how can a man decide what is appropriate for a woman to wear?

In the name of constitutional interpretation, religious restrictions and school discipline, we had men making decisions for women. When Justice Gupta spoke of the discipline established by a uniform and how a hijab took away from that, he failed to realise how innately contradictory his verdict was in the light of fundamental rights like right to equality and freedom of religion. A Muslim girl has much right to pursue education as a Hindu girl, and should enjoy as much liberty to follow her religion as say a Sikh boy.

In an era of ‘Beti bachao, beti padhao!’, the very fact that something as trivial as a piece of fabric covering a woman’s head arose to be such a big issue because apparently it affects the discipline of a school, tells us all we need to know of the current system. A girl with a hijab upsets a judge. A girl without it upsets many a Muslim.

Without being able to strike down Karnataka High Court’s verdict, the verdict of one of the judges of the Supreme Court’s judgment amounted to allowing a grotesque invasion of a woman’s privacy. He seemed okay with a girl being expected to take off her hijab just to enter the school. It was a step in the wrong direction in the realm of women’s emancipation and educational empowerment. It conjured up mistrust being manifested wherein only Muslim women, bearing a double burden of gender and religious discrimination were bound to suffer.

In the entire episode, the polity, the judiciary, the media came off as ignorant of the women’s plight. They failed to grasp the vast difference in the experience of a girl getting educated from a boy pursuing education. There are few, if any, social obstacles in a boy seeking education. For most girls, going to school itself is a challenge. Millions of families do not prioritise girls’ education. Under the circumstances, why should a woman’s garment become a subject of male dialogue and discourse to begin with? Why do political power holders feel entitled to invade into private matters? Why isn’t education a base to a superstructure of society? With education, may be more girls will be able to decide for themselves, even if some of them wear hijab because of family honour and not a personal choice. You deprive them of education and you send them right back into the shackles of a patriarchal society.

Under the circumstances, the words of Justice Dhulia who stood up staunchly for education are important. “While I do so, I am conscious that as far as possible, a Constitutional Court must speak in one voice. Split verdicts and discordant notes do not resolve a dispute. Finality is not reached. But then to borrow the words of Lord Atkin (which he said though in an entirely different context), “…finality is a good thing, but Justice is better.” Here is hoping for justice for Muslim girls.

[The author is pursuing journalism at Amity University, Noida]

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