Saudi Arabia bans women from covering their faces in single-sex places- e.g. classrooms of Girls Colleges. Why? Women should be able to verify no male- or disreputable person, e.g. a procuress- has snuck into their conclave. Some silly girls- egged on by the militant P.F.I and its ISIS type ideology- are demanding to wear full burqa inside such classrooms in Karnataka in defiance of College authorities and State law. They took their case to the Karnataka High court which dismissed their foolish petition. Did matters stop there? No. The Australians got involved.
These girls are sitting outside a girl's classroom in a girl's college. Why are they being so silly? Women are required to uncover their face when in female only company. They must also uncover their face when going on Hajj- which is a pillar of Islam. The religion says 'uncover face in classroom', yet they are doing the opposite and still expect to be treated as devoted adherents to it! This would be like Christian students demanding the right to crucify their teacher because Jesus, after all, was a spiritual preceptor.
The Hindustan times reports-
As the Karnataka high court hears petitions against the hijab ban, Farrah Ahmed, a professor at Melbourne Law School who specialises in Constitutional law and religious freedom, spoke to HT about the right to practice faith, privacy, and education. Edited excerpts:
Farrah Ahmed recently resigned from the Australia India Institute along with about a dozen other academics. They object that ' the tone or format of some events and activities on India have carried the flavour of propaganda, celebrating the current Indian government and its dominant culture and language, while overlooking or downplaying the current regime’s oppression and marginalisation of Indian minority, dissenting and critical viewpoints and identities.
India is a Hindu majority country. Farrah is Muslim. Does she object to the 'celebration' of Hindu culture in general or does she only object to an Australian Institute doing so? It appears there are Muslims in India who object to celebration of Hindu culture- e.g. the rioters at Jahangirpuri just recently. I hope Farrah does not condone that. What is clear, however, is that her opinion on the hijab ban was not shared by the Bench- which included a female Muslim judge.
What do you make of this issue?
I have been following it relatively closely because I think it does raise very important legal and constitutional issues. The actions here are quite extreme and significant. I have been very interested in what is going on. I would characterise it a little more strongly because of what the state is doing, what the state-funded schools are doing...I think the state is acting through these schools... requiring women to disrobe...
Disrobe means to become naked. Removal of hijab does not involve disrobing unless nothing is worn underneath.
take out a part of their clothing to access education.
Would I receive access to education at one such College if I removed part or all of my clothing? No. I would only be able to access education if I had relevant qualifications, was of the appropriate age and gender, and had been admitted to the College and arrived wearing the proper uniform- nothing less, nothing more. Thus access to education does not depend on 'disrobing'. It does not even depend on taking off one's top and revealing one's nipples. The sartorial requirement is the prescribed uniform. But it is a necessary, not a sufficient, condition for attending class. You still have to have been admitted to the college on the basis of age, gender, qualifications etc.
It is making disrobing a precondition for accessing education.
This is a wholly false and inflammatory statement. Farahh is saying 'Indian Government is forcing Muslim girls to disrobe and become naked. Only then can they get any education'. Either this woman is very very stupid or else she is lying knowingly and maliciously.
It is physically stopping women from accessing education because they are covering their heads.
No. Women can join other educational establishments with different dress codes. Similarly a Muslim woman who refuses to let a strange man of a different religion disrobe her is not physically stopping that man from having sons and daughters of his own. She is not violating his fundamental human right to a family life. He is welcome to go try his luck somewhere else.
And I think in some of these schools, they are segregating students on the basis of religion.
She thought wrong. Still, it may be an honest mistake.
So, I think the legal issues are not that difficult, they are pretty straightforward.
Indeed. Colleges have the right to prescribe a uniform. Students have a right to refuse to attend such Colleges and to choose others with a different dress-code. The claim that wearing hijab is essential to the practice of Islam has been rejected by the Court. One of the Judges was a female Muslim. She did not wear hijab. Farahh wears headscarf but not face covering. The Karnataka petitioners wore full burqa.
But what is actually happening, especially when we consider the fact that this is happening to children trying to access education, is very concerning.
These 'children' brought the case. They have created a ruckus. The agitation has now broadened. The minority may have initiated this but it is they who will suffer disproportionately as the matter escalates.
You are saying a college by issuing or reiterating this order, it is the state which is acting?
That is true. ...we cannot say that just because a school or a college is technically independent in some sense... the state is not involved.
Yes we can. That is what, technically speaking, the word 'independent' means. This woman is either lying or she knows nothing of the Law.
I understand there is a hearing going on and all that. I actually cannot see even prima facie authority for what is happening.
perhaps because she put on her burqa backwards
...I have not been able to access any rule clearly stating anywhere that these young women cannot wear hijab or cover their heads and go to school.
The Bench had no such difficulty. But then it wasn't wearing burqa backwards.
I have not seen that. ...they have this government order, and this is in the public realm, yes. And they say that is mandated or that they have the power to pass that order because of the Karnataka Education Act. But what the order actually does is to say that certain private bodies including schools and college development committees have the power to make provisions on uniforms. But we have not actually seen any of these provisions.
Probably because Australian Law Professors wear their burqas backward.
That is a fundamental problem because India is committed to the Rule of Law. The Rule of Law means that the law has to be accessible.
No. There may be either a perceived or actual conflict between Laws in which case the doctrine of pith and substance applies. There would be no need for Courts if the law was always 'accessible' and unambiguous.
It has to be clear. It has to be certain. It has to be predictable.
In which case there would be no lawyers. In this particular case the Colleges had the right to ban the hijab. This was clear, this was certain, this was predictable, but this stupid woman is an example of a lawyer to whom the opposite was the case.
That is any citizen of India, including these young women, if someone tells them you cannot enter, you cannot wear this, then they have to be able to point to a very clear legal regulation that says why they cannot do this.
That very clear and perfectly legal regulation was the College's dress code as amended by Government order. Kids learn about School Uniforms when they are about 5 years old. They may want to wear a Superman cape or a Joker mask but they get that it isn't allowed.
In this particular case, there is no such regulation. I have looked at the government order...it has a lot of dogma, a lot of rhetoric.
No it doesn't. It is simple and clear- pupils must wear attire that maintains "equality and unity and doesn't hamper public order". Hijab does not maintain unity. It was self-evidently provoking public disorder. The Government order was proportionate and legal.
It talks about three cases that have nothing to do with this issue whatsoever, including a Supreme Court case and some high court cases. But it actually does not state that these women cannot wear a headscarf and come to college.
But the Colleges did say 'you can't wear hijab'. That was a clear statement regarding a matter where the College had the right to enforce its own will.
For me, there are all these constitutional issues that we can get into... it is actually a much more fundamental problem where there is no law whatsoever that validates, empowers the schools and colleges to act in this way.
The reverse was the case. There was no law saying that girls can wear hijab and attend class even if their College says otherwise.
Can you elaborate?
The initial part of the order...I read a translation. I cannot read Kannada. But I read two different translations...I feel fairly confident that I have understood the meaning.
We can't share her confidence. This is a woman who thinks removing hijab involves 'disrobing'- i.e. becoming naked, though it is the practice of Muslim women to wear modest clothing under the burqa. They take off this outer clothing once inside the Girl's College. It is foolish to suggest that women have to remain veiled while seated among themselves.
There are seven parts of the order that talk about public order, unity, people... there is this kind of long narrative in the beginning that talks about that. And then there is this section of the order that cites these four cases that maybe have nothing to do with this issue in my view
but not from the legal point of view
and says that there is no fundamental right to wear a headscarf.
Not when inside a Girl's College. But there is no religious duty to do so either.
But then it does not actually lay down that these women will not be able to wear a headscarf...all they say is that other bodies can make rules and we do not know where those rules are.
But those affected were told by their College authorities. That's all that mattered.
So, on the basis of this order, you cannot stop women from wearing hijab...
But that was the outcome. The Bench upheld it.
There is nothing in this order that points to a past regulation or a rule that banned the hijab in these schools.
Because there was no such need. It was clear that Colleges had the legal power to do exactly that which this stupid lawyer says they couldn't do.
Even if someone accepts that this order bans the hijab, it still has to be justified through an act.
No. An order does not have to be justified by an act of the legislature. It may be challenged in Court but the Bench may uphold it.
The government is claiming that the order is based on the directives of the Karnataka Education Act, which is fairly comprehensive and regulates a lot of schools and colleges and what they can do. But if you look at this Act, it does not say anything in any way that gives the government the power to ban the headscarf.
That was her opinion but it was wrong. Our opinion is that she is stupid.
In fact, it says many things that suggest the opposite.
To a cretin- sure.
For instance, it says that the government has to work to promote the education of weaker sections of the society, of backward classes, and arguably these young women, by virtue of being women if nothing else.
Does wearing burqa make you smart? No. There is overwhelming evidence that burqa wearing women are more ignorant and less educated than women who wear College uniform and then follow their employer's or profession's dress code. Countries which moved forward rapidly- e.g. Attaturk's Turkey banned the burqa. Countries where burqa is gaining ground are falling behind- e.g Taliban ruled Afghanistan.
The Act talks about promoting education, India’s composite culture, diversity, richness, and heritage of our composite culture. So, it talks about all these things that in my view totally opposite of this order.
because this lady has a very peculiar view. The strange thing is that she is expounding it from the affluence of Australia- not a country well known for its mosques and burqas. If she loves the burqa so much, why does she not settle in Kabul?
...the order cannot...be valid according to the Act... Even before we get to the constitutional issues, this order is what we call ultra-vires that is it is outside the power of the Karnataka Education Act.
This silly woman may say it is ultra vires. The Bench decided otherwise.
Has the issue become murkier because of political groups?
The issue was straightforward. The Government can ban the burqa in India just as it can ban it in France. Women may choose to stay at home. That is perfectly in conformity with Sharia Law.
There seems to be an absolute lack of good faith...even if we are putting to side the fact that fundamental rights are being breached,
No fundamental right was breached. It is not the case that a College must teach crazy jihadis or burqa clad maniacs.
we are putting to one side that what the schools are doing is unlawful.
Schools mustn't force student's to wear school uniform. Instead of following Indian law, they must follow Taliban law.
If there is a dispute between the schools and the students, then you would expect the parties to negotiate in good faith
Very true! If students want to piss and shit on teachers, why is the Principal not negotiating in good faith with the retards?
with the mindset that there are these students and it is their best interest that we should think about and we should come to some solution so their best interests are promoted.
The majority of the students are Hindu. If Muslim girls wear hijab, they will wear saffron scarves.
Is the high court looking at what is essential to Islam?
There has been a lot of focus on the right to religious freedom (Article 25), and that is important. I am not saying it is not important. But I think that in this particular case, there are other fundamental rights that are actually more salient.
Which is why there is now a Halal agitation. It is discriminatory that only Muslim butchers can be employed, by law, in the meat export industry. It turns out that there are all sorts of fundamental rights of Hindus which are violated by Laws favoring Muslims. The hijab row has opened a can of worms. The stupid girls who very stupidly thought that they needed to wear hijab inside a Girl's school have greatly harmed their own community. On the other hand, they have united Hindus previously split over the Lingayat/Veerasaiva issue.
They have been violated. ...we have to have the Rule of Law.
Equal treatment under the law means that the Halal only rule for meat exports must be overturned. So will any distinctive treatment for Muslim girls- no matter how much of a ruckus they kick up- provided Muslims are a small minority in the State.
The law has to be clear and so on. Article 14 of the Constitution protects the equality of law and equal protection of the law.
So the Halal regulation must be overturned.
...it has been very well established now that it protects the citizens of India from arbitrary action.
The Halal rule is arbitrary. A larger proportion of Indian meat exports go to non-Muslim countries.
What do we mean by arbitrary state action? It is any state action that is not based on reasons...where the conclusion or the outcome is not connected to the reason.
It is reasonable to ban burqa in public spaces altogether. It is more than reasonable to tell girls in Colleges not to be so bloody stupid and to expel them if insist on hankering after Taliban rule.
That is one example of arbitrary state action. The order has all of this stuff... some of it is absolutely misleading like the characterisation of the case law.
What is this cretin saying? The attorney general is not allowed to make any argument she does not agree with? Arbitrary state action occurs where, in the opinion of an ignorant and bigoted pedagogue in Australia, 'case law' is 'mischaracterized'? The truth is quite different. The State has equal liberty to make a legal argument in any way it thinks fit. It is the job of the bench to decide whether 'mischaracterization' has occurred. In this case, the Bench decided that the State was in the right.
It has no connection. ...I think this is a breach of Article 14... The state is acting arbitrarily here... most salient for me for this particular issue is the right to privacy. ...the disturbing images that we have been seeing. ...young women, girls, and teachers as well having to disrobe in the public.
Where are there images of Muslim girls being forced to get naked in public? This stupid liar is telling a particularly stupid lie.
This is absolutely a central case of a breach of privacy because of what the Supreme Court has said. This is in a very well-known judgement of Puttaswamy.
which was about biometric information on Aadhar cards. It has no application here. I can get naked in my own house and prance around with a radish up my ass. This follows from my constitutional right to privacy. I can't go and do the same thing at School or any other public place.
It made it clear that there is the right to privacy in the Indian Constitution. If you look at the way they characterise the right to privacy, they talk about intimate decisions. They talked about having a sanctuary.
My home is such a sanctuary. I can prance around naked there to my heart's content. But I would be arrested if I did so in any public place.
They talk specifically about religious dress. So, saying to someone this is your dress, you have to take out one part of your dress in public is an infringement of privacy. ...
There is no law forcing you to wear clothes when you are in a private place. However, a College has the right to enforce a uniform dress policy. There is no infringement on privacy by insisting that you can't get naked and run around a court of law or a College with a radish up your arse.
It is a phenomenal infringement of dignity. ...that is absolutely the key issue and there are also other issues...the right to education, to free expression. Whether we are religious or not...whether we wear some clothing or we do not... We have the right to freely express ourselves. So, I think that is also a really important right that has been infringed here.
If so, Australia is guilty of infringing this right. There is a law whereby a woman has to remove her face covering if asked to do so by a State official.
An air force official was terminated from work because he kept facial hair. He argued that it was an essential part of his faith and the court ruled against it.
He was Muslim. Hinduism and Islam permit cutting hair and trimming beard. Sikhism does not. So only Sikhs can keep beard in the Indian Air Force.
What are the precedents essential to understanding which will have a bearing on what the Karnataka high court is looking at?
Given the example you gave, there are precedents that are not actually precedents. That is to say, they are precedents that should be distinguished because these are not like cases. I would suggest that this kind of case where we are talking about the air force or the army or where there is an absolute paramount state interest in the discipline, in people falling under authority, or military ethos. Any decision you make about religion in that situation, I do not think is in any way applicable to a situation of people living in a civil society. Certainly not applicable to a situation where we are talking about young women trying to access education.
But all who access that education conform to the dress code. Islam permits this. Young women talking bollocks don't gain any legal immunity thereby.
In another case, some Muslim girls were not allowed to wear hijab in view of mass cheating, which is a problem in India. Would that be a precedent?
I did read the news about that. But I did not actually read the judgement.
It applied equally to Catholic nuns. To be fair, most cheating in India is done by boys. However they are not allowed to get naked and prance around with a radish up their bum. This is a terrible violation of their fundamental rights. Rahul baba was forced to go abroad for higher education for this very reason.
So, I would have to go back and read the judgement. The other precedent cited in the government order is one where a girl from Class 6 wanted to wear a headscarf to an all-girls school. ....even though the government is citing it in its favour, it actually goes against it... in this particular situation where you have a girl with only other girls, then it is difficult to argue that covering your hair in that situation is a part of the essential religious practice protected under Article 2.
This case is about girls in a girls college. They don't need to cover hair or face. Hajj is one of the 5 pillars of Islam but women on Hajj can't cover their face.
So again yes, that case seems sort of similar. If we had another case where it was an all-girls school and you have a very similar situation, then yes, I think that counts as a precedent. But the court was quite careful in that case to make it clear that they were only seeing this because this was a very young girl in a girl’s only school. So, there are a lot of precedents that are cited that I think should be treated with care and are not really applicable.
So, this cretin thinks Puttaswamy is applicable, though it has nothing to do with what girls wear in school, but other cases which are about what girls can wear in school or while sitting an exam are not relevant at all. Was she always this stupid or did teaching Law in Australia make her stupid?
In terms of precedents that are important, a really important precedent comes in response to the Biju Emmanuel case.
The Supreme Court relied on an Australian judgment in that case. This had to do with kids refusing to sing the National Anthem which was not required by Law. This may change.
There are other Jehovah’s Witnesses cases that are quite important and tell us something really important about the nature of the right to religion. Because in those cases, you are dealing with Jehovah’s Witnesses’ religious practice. These are cases where for instance children are refusing to sing the national anthem. They are refusing to salute the flag. And it is not just India that has dealt with these cases. Such cases have come up in other jurisdictions as well because of Jehovah’s Witnesses’ practice. Now, those of us who are patriotic might be unsympathetic to these children and to their parents and say that these children are not showing respect to the flag or national anthem. But the court actually protected the rights of these children in these situations.
Kerala High Court ordered the kids to sing the national anthem. The Supreme Court took a different view.
So, when we keep in mind what fundamental rights are for, they are not there to protect things that you agree with, but things that the majority agrees with.
Perhaps the lady is being misquoted. Majorities are irrelevant when it comes to rights.
If there are things that everyone agrees with then there is no need for protection. The fundamental rights are there to protect those who are vulnerable, those who are weaker, those who might be unpopular, those who might be subject to harassment, those who might be disliked. It is the practice of these people that we have to give the most sacred importance to under the Constitution.
In this case, the College had a superior immunity which trumped the rights claim of the hijab wearing students.
There seems to be an opinion that wearing the hijab is an expression of subjugation and it is not autonomy or agency. As someone who wears a hijab, what would you say about that?
Even though you are asking a general question, it raises further Constitutional issues because the Supreme Court also said that what is forbidden under Article 14 is stereotyping.
Presumably Anuj Garg is meant. This had to do with restrictions on the employment of women and men under 25 in places serving alcohol. In the old days there was a stereotype that only women of bad character would be seen in such places. But alcohol is served in 5 star hotels where big companies hold conferences. The law was outdated. Trainee Hotel Managers may be female or under 25. Their morals won't be corrupted if they work in a place where the Australian Ambassador is served a pint of beer while the French Ambassador drowns snails and frogs in his glass of wine. What? Stereotyping French peeps is not forbidden under Article 14.
To me, this is a very common trope about Muslim women. We can talk about prejudices more generally but I think with Muslim women, in particular, there is this trope of being oppressed, being subjugated, not being educated, not having autonomy, not having agency.
Farrah herself illustrates another stereotype- that of the educated Muslim woman who hankers for ISIS rule because she is as stupid as shit.
So, I think that narrative that you have conveyed fits very well with that.
Whereas the narrative Farrah is conveying doesn't fit with the notion that she understands the Law.
In a way, I feel I am not the person to respond because I think the people you should look at are the women who are affected on the ground. I do not know what everyone’s reaction is but when I see those women, they are demanding that they have the right to education.
While violating the College's dress code in a stupid manner. Islam says don't wear veil when among other women or when with your husband and sons and brothers and so forth. Similarly boys are forbidden to attend College while naked and with a radish lodged up their bum.
They are asserting themselves. They are not scared. To me, there is nothing much more that needs to be said beyond looking at these women.
What about boys who are not scared of running around campus with a radish up their bum? Does Farrah really want to look at them?
Can you really deny their autonomy, can you really deny their agency?
Yes, more particularly if, at a later date, like Shamima Begum they decide to run off to become ISIS brides and lose their British or Australian citizenship. The fact is kids do stooooopid shit. That's why Schools and Colleges must have strict rules.
What those images reminded me of was Malala [Yousafzai] and her bravery against the Taliban to get an education. Are we really going to say that because Malala covers her head with a dupatta, she is not autonomous?
We really do say that Muslims who believe in burqa shot Malala in the head because she was attending school. I don't blame any Muslim girl for preferring burqa to a bullet in the head.
Is the issue similar to what has been happening in France?
There are differences in the social context. But the biggest difference is that there is a fundamental difference between the laws, the Constitutional provisions, the values of the French Republic, and India.
India can amend its constitution or indeed promulgate a Second Republic. Currently, the French Republic is on its Fifth iteration.
When France bans headscarves, those are justified on the grounds of what they called Laïcité, which you might translate into secularism.
So India can do so too.
I have seen people make the argument that ‘France does this in the name of secularism so why should India not do it as well, we are also committed to secularism just as they are.’ But that is actually a very misleading comparison because if you understand what secularism is in India, it is completely different from French secularism.
Unless the Bench decides otherwise.
In particular, Laïcité is basically about uniformity, making everyone the same, homogeneity.
Very true. Macron and La Pen have identical genitals.
There are a lot of people who have written about how that is oppressive to anyone who is different.
No. France had anti-Clericalism. India didn't. But plenty of Muslim countries have banned burqa and hijab at one time or another from a similar desire to curb the power of the Religious Establishment.
Indian secularism is absolutely clear.
No. It is a hodge-podge. Will the halal rule re. meat exports be struck down? It is clearly anti-secular. But that doesn't mean it won't survive. Vegetarian Hindus may harbor the dream of converting their meat eating co-religionists who are actually the majority. Stigmatizing meat as 'Islamic' may appear a cunning ploy to those cretins.
I do not think there is any room for doubt among people who are arguing in good faith. Indian secularism is not about excluding religious practices from the public. It is radically inclusive.
Sadly, some Indians think that attacking Hindu processions is a very 'inclusive' practice. But at least that is better than ethnically cleansing Hindu minorities- as happened in the Muslim majority Valley. Over the last 30 years most Muslim women there have been forced to wear burqa. Aroosa Parvaiz, a 12th Class topper from Srinagar, has been threatened with beheading because of a photo which appeared of her without hijab. What is happening to girls in Kabul right now will soon spread to Kashmir. Sadly, there can only be one Malala- especially now America has run away from the region. Thus getting shot in the head won't help Aroosa get a Nobel Prize. As I said, women should do what is safe and sensible for them. In Kashmir that might mean wearing burqa but not so in Karnataka- at least not yet.
As for Farrah Ahmed, good luck to her. She is too stupid to rise as a lawyer in India. Australia is the best place for her. Let her condemn India to her heart's content. Even if the Chinese don't reward her at least the local franchise of ISIS or the Taliban or whatever won't think it worthwhile to put a bullet in her head just because she goes out of the house to work.
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