Some thoughts on the Niqab controversy

Kerala’s ‘Muslim Educational Society’, an organization established in 1964 and registered under the Societies Registration Act attracted national attention recently when they introduced a ban on ‘all forms of clothing that covers one’s face’ among the students in educational institutions run by them. The society, one among the pioneers in Kerala’s Muslim renaissance movement runs a total of 150 educational institutions, which includes a medical college, 18 Arts and Science colleges and 36 CBSE schools.

The circular promulgated by the MES. Sourced from here (MediaOne TV)

The internal circular, promulgated by the society on 17th April 2019 and signed by Dr. PA Fazal Gafoor, the society’s president cites the judgment of the Kerala High Court in Fathima Thasneem (minor) & Anr v State of Kerala & Ors and directs the college authorities and local managements under the society to take adequate measures to make sure that female students do not attend the classes in any forms of clothings that cover their face. Ever since it was reported by the media, the issue has occupied much space in the public discourse. While some lauded it as a progressive step, some – mostly Muslim religious organisations and clerics – alleges that this is an unreasonable encroachment on personal liberty of the students to choose their own dress.

The MES is not the first body to trigger this debate. Neither is this the first instance of such face-covering clothing facing a ban in the world. France was the first European country to ban it, back in 2004. Belgium, Netherlands, Turkey etc are some other countries where you can’t wear it in public. More interestingly, many Muslim world leaders have also taken a view against face covering clothing. This public address from Egyptian leader Gamal Abdul Nazer is an interesting watch.

Back to the Circular

“Striving for the socio-cultural upbringing of Muslims through education, MES insists that the students of the colleges under it maintain propriety in dressing, alongside curricular and co-curricular excellence. In this circumstance, it is not possible to entertain clothing that are unacceptable to mainstream society – whether it is in the name of modernity or religious customs.

It is directed that the institutional heads and local management heads be cautious in this regard.
It shall be enforced without scope for a controversy from the academic year 2019-20 that on the basis of the above cited decision, female students don’t attend classes in any form of attire that covers their face. “

Says the circular, which has been hailed as a progressive move by supporters and lambasted by the critics for being too progressive. As a recent development, Dr. Fazal explained what is “not acceptable to mainstream society’ in an interview with The Scroll .

“They should avoid wearing leggings, jeans and miniskirts, to name a few. Mainstream society does not approve of the wearing of these garments. Our internal circular aims to encourage the students to maintain decorum in dressing and adhere to our cultural ethos. It is difficult to say exactly which dress is obscene and which is not. The saree, for example, is considered a decent dress in Kerala. But it can be worn either decently or obscenely.”

Dr. Fazal Gafoor, in an interview with The Scroll

One can see that the circular is in fact an encroachment on the choice of students to wear what they like. Claiming authority from a decision of the High Court of Kerala, the Society requires students to avoid dresses that are unacceptable to mainstream society (which according to the President, includes jeans and leggings).

What is in the Judgment?

The circular places reliance on the judgment of the Kerala High Court in Fathima Thasneem (minor) & Anr v State of Kerala & Ors (WP(C).No. 35293 of 2018) which interestingly is a treatise on the powers of the school administration to regulate its affairs. The judgment does not ban face veils nor leggings, though Muslim headscarf was the element that prompted the litigation. (If you too are confused between headscarf niqab and burqa like I was, this newsround piece from the BBC might help).

The writ petition (civil) was filed by Fathima Thasneem and Hafzah Parveen, both minor students at the Christ Nagar Senior Secondary School in Thiruvallam, Trivandrum through their parents challenging the decision of their school not to allow headscarf and full sleeve shirts which they found inconsistent with their uniform. The court went on to analyze and balance the fundamental right the school management had (which, in the opinion of the court is traceable under Article 19) to administer the institution and the individual right of the student to wear the dress of her choice.

The court recognized the the horizontal application of fundamental rights and admitted that fundamental rights are claimable against private entities like the school management. The court then observed that in every human relationship, there evolves an interest and held that when rights are competing, if not resolved through the legislation, it is a matter for judicial adjudication. The court went on to rule :

The Court, therefore, has to balance those rights to uphold the interest of the dominant rather than the subservient interest. The dominant interest represents the larger interest and the subservient interest represents only individual interest. If the dominant interest is not allowed to prevail, subservient interest would march over the dominant interest resulting in chaos. The dominant interest, in this case, is the management of the institution. If the management is not given free hand to administer and manage the institution that would denude their fundamental right.

Justice A Muhamed Mushtaq, in Fathima Thasneem (minor) & Anr v State of Kerala & Ors.

The court concluded by ruling that “It is for the institution to decide whether the
petitioners can be permitted to attend the classes with the headscarf and full sleeve shirt. It is purely within the domain of the institution to decide on the same. The Court cannot even direct the institution to consider such a request.”

What is to be noted here is that the court did not go into serious questions like whether headscarf and full sleeve shirts were essential practices within Islam. What the court essentially did was upholding the right of the management of the institution to administer their educational institution.

The Danger in the Ratio

This decision, in my opinion is another addition to the catena of anti-student decisions from the High Court of Kerala. The court, through its various decisions have given a free hand to the college managements to deny students their basic freedoms – from participating in political activities to protesting against the policies of management. Arbitrary exercise of these powers by profit-mongering private college managements resulted in the suicide of an engineering student, Jishnu Pranoy. The transformation of educational institution into torture chambers under the support of the decisions from the court transpired following the death of the student, and it indeed was scary.

The question of compelling interests of individuals and the society at large have been a concern of the judiciary ever since it was established. It was the dominant interest (or rather, the interests of the dominant) that prevailed over the interest of the subservient before rule of law was established and might decided what was right. The very idea behind rule of law was changing this scenario.

The constitution of India created the part 3 to protect certain individual interests that had to be preserved from being denied to individuals by the state and two among them are the right to freedoms, and the right to personal liberty. Giving a free hand to the administration of an institution to rule the students the way they please, definitely will not be something that the makers of the constitution envisaged.

In a constitutional democracy, what we expect from the court is the protection of individual freedoms from being arbitrarily infringed. Refusing to exercise it’s powers to judicially review the actions of the management results in nothing but the denial of the right to constitutional remedies to the students when their precious freedoms are being violated.

Coming back to Niqab

Assiduous advocates of head veils (who interestingly are mostly men) say that it is the choice of the woman. In my personal opinion, in most families it is a ‘Hobson’s Choice’. (A Hobson’s choice is a free choice in which only one thing is offered. In this case, a woman can go out covering her face, or choose not to go out at all). It is a dress code that is imposed by patriarchy and religious orthodoxy.

Far more important to me than the security concerns or other issues associated with the face covering, is the misogyny that is associated with it. The idea that the trolls say in plain terms -“her beauty is for her husband”. Hence, I would support any move that would result in relieving women from the symbols of oppression. In this case, it is a welcome move as a minority institution has taken this stance. The change is coming from within the religion itself.

However, the reasoning of the management in using the standard of ‘acceptability of society’ raises concerns. How can jeans and leggings be compared to niqab and be judged on the same yardstick of societal acceptability?

(Featured Image : Bui Bui by Michał Huniewicz)