India’s Hijab Ban, Part I: Limits of the Democratic Constitutional Order

This is part one of a two-part series. You can find part two here.

In March of 2022, the Indian High Court in Karnataka upheld the government ban on Hijab in schools as constitutional. The Hijab ban, petitioned (largely) by Indian female students, was implemented as a government order to ban religious clothing in schools (targeting Muslim minorities in particular). In response, Muslim women passionately defended their presupposed constitutional and religious right to wear the Hijab (under Article 25 of the Indian Constitution), culminating in a long-form legal and social onslaught of petitions and protests. Yet, until the Supreme Court rules on the issue, the High Court’s ruling will remain the definitive answer to the question: Was the Hijab ban unconstitutional? 

As India negotiates between a British-inspired legal system which claims to uphold constitutionalism, liberalism, democracy, and secularism, and the BJP’s “religiously” fanatical, nationalist government, the Muslim minority within the country grow increasingly anxious. Their government not only denies their foundational religious practices, politicians and administrative authorities also tacitly allow, if not encourage, communal violence against them.

To delineate whether the Hijab was protected under the Indian constitution, we can use the “Essential Religious Practice”” test.[1] The test first asks whether the given conduct, activity, matter etc. is an essential matter of the religion, such that its negation would violate religious freedoms. This is how the courts have understood practice in relation to Article 25, since the 1954 case of Shirur Mutt.[2] In this most recent case, the court deemed the Hijab a merely cultural artifact, inessential to religious practice and therefore not subject to Article 25 protection.[3] However, even if deemed essential, the Hijab would remain subject to certain other considerations; that is, the court would still have the capacity to reasonably restrict the right to wear Hijab under Article 25. The decision details some such considerations: the social separateness that students wearing Hijab would cause, how this renders the idea of a school “uniform” irrelevant, how this is actually the result of “unseen hands” interfering in domestic Indian politics etc. As expected, the protesting students would never receive a legitimate response; this, combined with the court’s supposition that the protests were rooted in some supposed Islamist radical propaganda, resulted in student complaints against the bias and general incredulity of the court in attempting to legitimately adjudicate the question. 

The decision raises important questions regarding the limit of a rule-of-law constitutionalism in protecting minority rights, as well as the adjudication of the “religious sphere” by secular authorities. How might we conceive of “Islamic identity,” and the new ways in which contemporary liberal conceptions of Islam only strengthen legalized attacks on religious freedom and practice, rather than strengthening free religious practice itself?

The History of Religion in the Indian Constitution and Prospects for the Future

Note: The following section is meant to engage Muslims who assume that we are better off in secular constitutional states than some alternative political order.

A secular constitution was made possible in India, in part due to the strong protection of religious rights and the preservation of distinctive religious identities.[4] Conceptually, the secular state functions as a neutral ground which grants equality to all religious groups without favouring any one over another. Through a system of checks and balances, the legislature, judiciary, and executive branches (markedly Western constructions of a modern political state) would thus prevent even majority religious groups from imposing a uniform ethos on others. 

Historically, the basis of Indian secularism was similar to its Western counterpart: both intended to limit violence within religious groups by regarding the state as a neutral, impartial arbitrator and protector of rights. Of course, one immediate problem is that if the checks and balances system was ever compromised by a given religious orientation, its failure would create severe problems (as seen in India). The concerns with this given legal order do not stop here. There is also the larger issue of competing legal sovereignties and authorities, specifically of who has the right to interpret religion and religious practices within the constitutional order. 

After all, a modern state cannot allow for a community to self-govern in relation to particular religious practices that operate outside of the state’s laws entirely, since this would then collapse the rule of law. However, to limit that group’s ability to practice a given religion would compromise the right to religious freedom: naturally, as in most constitutions, Article 25 places natural limits on the right to religious freedom, citing that these rights are subject to considerations of public health, morality, order, etc. 

No one would reasonably defend a religious group’s right to absolutely practice whatever it wishes outside of the contours of state legislation; however, what concerns us here is the expanding scope of “emergency” situations. Giorgio Agamben and other theorists, including the infamous Nazi jurist Carl Schmitt, refer to the idea of the “state of exception” or a situation in which the constitutional order must dissolve itself or be suspended by the sovereign, based on exceptions or emergencies which require us to sacrifice the rights to which we are normally entitled.[5] Thereby, sovereignty is contingent on whoever has the right to determine such exception or emergency situations; that actor essentially decides whether or not the rule of law is applicable. 

In an riveting conversation regarding the future of democracy, John Mearsheimer, responding to liberal giant Francis Fukuyama, mentions that there are increasingly more and more situations in which liberal democracies may have to engage in these kinds of behaviors.[6] Protests, the rise of populism, democratic backsliding, nationalism, internal dilemmas such as the refugee crisis, etc. all create situations which supposedly force democracies to retract the rights of certain citizens. Fukuyama does not, however, address the question that follows: If democracies have a right to freely declare state-defined emergencies, what difference remains between them and authoritarian regimes? China could plausibly function as a democracy everyday of the year except election day (when an “emergency” forces the CCP to dissolve elections due to external tampering). Such a situation would be entirely legitimate given the ever-looming threat of the exception; in fact, staunch defenders of liberal democracy only find it increasingly necessary to legitimate such “emergencies”, to return to some supposed baseline ideal functioning of democracy which may result in a permanent state of non-democracy justified on the basis of some future democracy to come. 

Is this relevant to the situation in India? Perhaps. The emergencies which may negate the rights of Muslims (as outlined in Article 25) fall under the broad, ever-present perceived threat of terrorism, religious populism, and the undermining of the security of the Indian state. In Karnataka, the court described how “unseen hands” (referring nominally to fanatical religious groups, Pakistan, political dissidents, etc.) had actually sparked these protests. This theory legitimizes the Indian state’s right to determine, based on concerns of national security, that various rights must be denied to Muslims indefinitely until the threat is neutralized. When, where, and how such resolutions arise remains unspecified yet entirely permissible within the larger legal scheme of Indian constitutionalism. So long as the courts are willing to enforce them – which they undoubtedly would if ideological orientations and commitments were favorable – resolutions to deprive Muslims of their rights may pass without legal impediment.

The democratic constitutional order presupposes that it is best positioned to protect religious rights, solely due to its neutrality and lack of ideological partisanship. However, if this impartiality is compromised, the liberal democratic constitutional state no longer represents the best interests of religious minorities. India no longer prevents religious violence but encourages it; rather than protect religious rights and practices, the Indian state increasingly seems to function to destroy and erase them.

Thus, it is short-sighted to simply assume that a successful petition against the Hijab ban would somehow resolve a problem endemic within liberal democracies. The state will always uphold its own sovereignty as the only absolute – all rights, freedoms, and protections are always subject to limitations based on supposed threats to state sovereignty (although sovereignty conceptually does not even have to be limited to the state, as we see in weak states where non-state actors are empirically more “sovereign”). 

As liberal democracies remain unable to resolve this dilemma, the minority groups who fall victim to exceptions will only find their interests increasingly underrepresented in the constitutional order or regime. As in, the very threats to democracy that force it to engage in this exception-making (namely: populism, national security, rebellion, etc.) are strengthened by the enforcement of such exceptions to begin with. Whether this will lead to an overall reconsideration of absolute sovereignty and power, or to the development of a constitutionalism without any inherent limitations, is yet to be seen. 

Even in the US, where rights are supposedly without limitation, we see courts limit those rights when deemed necessary for whatever public policy concern they see fit (for example, the repressive security apparatus that developed post 9/11). Increasingly, we see that various minority groups may pursue state-making, as larger constitutional federations remain unable to meaningfully offer them equal participation or protection under the law based on political contingencies and developments. The effectiveness of a checks and balances system that underlies constitutional thinking is something Muslims should reconsider as the basis of religious protection in a modern political state. 

However, some may respond that a non-liberal democracy – a non-constitutional, democratic, secular, etc. state – will be equally unable to offer these protections. While true, this ignores the question of the legitimacy of one state system over another. The development of our contemporary norms and regime is based on the idea that power ought to justify itself in relation to the sovereignty of the people, that it must be limited, democratically accountable, etc. For this reason and more, the secular state was seen as superior to a religiously-oriented one. And, all of the various consequences of secular modernization, in terms of theories on state development (whether the mass increase of centralized state power and capacity to engage in violence and repression, surveillance, the breakdown of traditional ethical and social mores and values, increasing atomization and breakdown of communities, etc.), were justified in relation to the fact that the secular, liberal, constitutional, democratic, etc. state was uniquely capable of upholding minority rights and protecting them. 

With this core superiority of the democratic state increasingly vanishing one wonders what purpose such a regime serves to a religious minority. The state does not publicly adhere to their various religious and political ideals, nor does it manage to protect their rights in a private sense. It then only becomes increasingly likely that the compromise which underlies the secular state, a kind of social contract from a liberal position becomes useless; people will pursue specifically non-democratic forms of governance which they believe are more capable of solving their problems. This defines much of the current paradoxical situation in Europe where democratic institutions such as elections are leading increasingly to non-democratic leaders, who with the democratic support of the people then undermine those very democratic institutions. Much of the fascination with the BJP, for example in Hindutva ideology, is their capacity to do what other parties are not, namely to erode certain democratic traditions and institutions to achieve political goals. 

This phenomenon which is sometimes referred to as “democratic backsliding” also ironically then justifies the use of non-democratic means to save democracy itself.[7] This is what happened multiple times in the 20th century in Turkey, for example, where the possibility of a religious Islamist candidate winning was so serious and frightening, that the entire secular regime (through the military generally) oriented itself to deny them inclusion in the democratic process.[8][9] We enter into a spiral of democratic confusion, where democracy is defined solely as “good guys” winning and “bad guys” losing, and any “bad guy” winning through the democratic process is seen simultaneously as the result of some external factor outside democracy, and then also justification to disregard all democratic procedure and rights to get democracy back on track. If one actually analyzes the everyday function of a democratic state formally, as in outside of theory, there is an entirely different set of norms, conventions, and processes than what we theoretically and normatively presume a democracy implies or allows.

It also seems that democracies have a difficult time upholding their grounding promises and claims. Fukuyama suggests that non-liberal, non-democratic, populist regimes cannot justify themselves for long periods of time. They make promises they cannot uphold: for example, Fukuyama claims Venezuela under Hugo Chavez was only able to offer such generous social welfare programs due to the high oil price at the time – the Venezuelan economy was based entirely on this one commodity.[10] Its inability to maintain long-term promises, Fukuyama argues, deems the populist state illegitimate.

However, we also see that democracies cannot maintain long-term promises: wage stagnation, deindustrialization, unequal benefits of globalization, and unaccountable leaders and institutions appearing as defining traits of contemporary democracies. When a populist regime like Venezuela fails due to a contingent drop in oil prices, we perceive this as a flaw inherent to the populist regime. Yet, when essentially every modern liberal democracy has a growing problem of far-right authoritarian extremism, we maintain that this is not actually inherent to democratic regimes, despite its repeated occurrence. 

Today, the constitutional order functions contrary to its initial standards: imagine how the fathers of the American constitution would react to the complete capture of the modern state by special interests or the huge role that media institutions play in shaping political consciousness. Yet, strangely, we do not attribute this to some inherent problem in the democratic constitutional state itself. Though liberalism inevitably led to globalization and economic devastation for a certain segment of the population and thereby the rise of populism, we pointedly sidestep acknowledging liberalism and market globalization as the cause of such devastation.

Clearly, this is not due to some empirical verification of democratic success; rather, the simple existence of a democracy is considered a success in and of itself. This mythos persists even when the supposedly democratic elements of the regime continuously erode. We must understand that the current existing political order is not without flaws; as Muslims, we must expand our horizons beyond this. If we limit ourselves only to the idea that our rights can only be found and maintained under the current constitutional orders of our various nation-states, we remain blind to the weaknesses and inabilities of these orders. The constant calls for “Arab democracy” reflect to me this Fukuyaman idealism perfectly; political pundits are constantly calling for the “Arab world” to modernize, by adopting democratic structures that are failing to deliver promises even in their ideal contexts (The United States and Europe being two prominent examples). 

The treatment of Muslims in supposedly liberal and tolerant countries such as France and India is not an aberration of how these regimes are “meant” to function – thus they cannot be corrected merely through wise leadership. Rather, these problems are endemic and inherent to our contemporary legal, ethical, political, and national systems. This fact requires Muslims to reimagine how we relate to these polities and what reforms are necessary in the Muslim world itself, such that we may protect ourselves from simply recreating failing political systems that happen to be dominant at a given point in time. When thinkers like Mohammad Arkoun discuss the need to create pluralistic secular societies in the Middle East, they entirely ignore how those very societies we strive to emulate (the US, France, UK, and Germany) seem to be in social decline and conflict themselves.[11] For Arkoun, until we accept a pluralistic conception of civil society, reason, and the rule of law, we are unable to escape a particular epistemic limitation born out by the complex mix of Islamic history, religious doctrine, and political movements. Thereby we must move towards the neutral state of the civil society, of public reason, of the rule of law etc., to reconstruct an alternative to admittedly (by Arkoun himself) teetering Western political models. The problem however, is once again this conception of the secular state as the legitimately neutral actor – prescriptively the secular state acts like an ultimate arbiter of truth based on fairness and justice, while descriptively it acts more like the Turkish military preventing religious candidates from participating in the democratic system to preserve democracy itself.

For those politically attached to the liberal/secular/democratic/constitutional order, the hijab ban should be seen as a completely legal and legitimate use of state-power. Even Faizan Mustafa, the notable Indian legal scholar, attaches his hopes to a somehow legitimately – and properly – functioning utopic constitutionalism, which in a realist sense of politics is always open to capture and exception.[12] In such a circumstance, Muslims may be required to rethink and reshape their ideals of political institutions and statehood. This would be different than the Islamist politics of the 1980’s which sought to use Islam to oppose cultural and economic decline, and to fight against Westernization and exploitation in a cultural and economic sense. This would reflect a much different question, namely whether a state can itself allow for something like independent religious practice not defined by the state itself, a question explored in the next part looking at the Essential Aspects Test of Article 25 jurisprudence.

Works Cited

[1] Faizan Mustafa and Jagteshwar Singh Sohi, Freedom of Religion in India: Current Issues and Supreme Court Acting as Clergy, 2017 BYU L. Rev. 915 (2018). Available at: https://digitalcommons.law.byu.edu/lawreview/vol2017/iss4/9, p.926
[2] https://www.scobserver.in/journal/essential-religious-practices-court-in-review/
[3]https://www.cnn.com/2022/03/15/india/india-karnataka-hijab-ruling-intl-hnk/index.html#:~:text=New%20Delhi%20%28CNN%29%20An%20Indian%20high%20court%20has,right%20to%20wear%20the%20Islamic%20garment%20in%20schools.
[4] Mustafa, p. 927-930
[5] Agamben, Giorgio. State of Exception. University of Chicago Press, 2005. p.11-13
[6]https://www.youtube.com/watch?v=lzqkXhdo0qc&t=4497s&ab_channel=CornellUniversity (John Mearscheimer and Fukuyama conversation)
[7] https://democracyjournal.org/magazine/62-special-issue/the-challenge-of-indias-democratic-backsliding/
[8] https://www.nytimes.com/2007/05/02/world/europe/02turkey.html 
[9] https://acmcu.georgetown.edu/2013/11/04/turkish-elections-important-reminders-about-secularism-democracy-and-islam/
[10] https://www.youtube.com/watch?v=gF8CJSQf238&t=1s&ab_channel=AmericanAcademyinBerlin (Francis Fukuyama on democracy’s failure to perform)
[11] Arkoun, Mohammed. The Unthought in Contemporary Islamic Thought. London, Saqi Books, 2002 p323
[12] Moustafa, p. 939

Photo by Darklabs India on Unsplash


About the Author: Faizan Malik is a student studying political science in Toronto. He is interested in modernity, liberalism, critical theory, and the role that these play in framing contemporary discourses on Islam. He is particularly interested in how critical theory can be utilized from a traditionalist Islamic perspective and to what extent such a marriage is possible or desirable (conclusion still pending).

Disclaimer: Material published by Traversing Tradition is meant to foster scholarly inquiry and rich discussion. The views, opinions, beliefs, or strategies represented in published articles and subsequent comments do not necessarily represent the views of Traversing Tradition or any employee thereof.

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