Soon enough, the Supreme Court of India will pronounce its judgment on what might be called the Muslim hijab issue. It cannot be more than a couple of weeks away as Justice Hemant Gupta, the senior judge on the bench, retires on 16 October. We cannot speculate on what the judgment will be. I shall, however, argue here that whatever it is, the petitioners will be the losers.
How can it be, you might ask. If the court rejects their petitions (there are several of them) it will be a legal defeat; this is understandable. But what if the court rules in their favour? How do they lose then?
The answer is that they will lose because they will have succeeded in getting the top court to sanctify what is, most certainly, a conservative practice. We cautiously avoid the term regressive, because it is judgemental. Conservative is a statement of fact. Even if it’s a choice that the courts uphold, it will be a socially conservative choice.
And indeed if the court upends the Karnataka High Court order and pronounces it an essential religious practice, it will be a double defeat. At home it might leave many Muslim women with no choice as families weigh in. Instead of widening choice it will end up curtailing it.
An order like that will also be a godsend for the ayatollahs in Iran. See, the top court in a secular republic is saying the hijab is an essential religious practice at any age. How can you complain in our Islamic Republic? A revolutionary one too.
Rhetorical question on how can the many modern and wise people in India favour the choice of hijab when women in Iran are risking their lives to liberate themselves from it is self-serving and defeats itself. Because women in Iran are fighting for the choice not to wear the hijab or not. They have no issue with those who are happy to wear it. In India, the tussle is very limited. It is confined to whether non-adults can wear hijab over their school (junior college) uniforms. As for adults, anybody who so wishes in India, can. In Iran it’s a compulsion.
It is likely that the Karnataka issue has been distorted in the public mind because the institutions involved are called ‘college’. We need to be clear that these are junior colleges, or senior schools, teaching students in classes 11 and 12. By implication only a rare student — if any — would be an adult at this stage. In India we pass class 12 normally by age 17. That should help us finesse the issues.
Also read: 5 reasons for the crisis in global Islam
There is no such thing as a non-polarised time in a democracy. But at this juncture, we are more polarised than in decades. That’s why we’ve had one party winning two successive majorities mostly on the strength of one faith’s votes. In the two Lok Sabha elections of 2014 and 2019, 585 candidates have been elected on the BJP ticket and not one of them was Muslim.
A polarised electorate produces a government of one side. It is natural that it brings insecurities and anger among those left out. The cornered minorities tend to lean back and protect the roots and fundamentals of what is so dear to them. Politically, it can often be a bad trap.
To unravel this complexity, we go back 37 years to the Shah Bano story. It was a simple enough case of a 73-year-old divorcee going to court seeking alimony. A personal case became a religio-political cause célèbre as the Muslim clergy saw it as a challenge to their personal law — which does not provide for any alimony except for what is the committed mehr at the time of the nikah.
The case reached the Supreme Court where the bench, headed by then Chief Justice Y.V. Chandrachud, the father of our next CJI-to-be, ruled in favour of the Indore woman divorced after 43 years of marriage. She was awarded an alimony of — hold your breath — Rs 500 a month. But it was seen as an assault on the Muslim way of life. Many Muslim mobs burnt effigies of Chandrachud (senior).
I reported it and wrote a cover story for India Today then, in 1986, and among the people I went to speak with was Maulana Abul Lais, then Emir of Jamaat-e-Islami-Hind. Check out that story here. He asserted that the Indian Muslims’ fight wasn’t so much about their lives and property. It was about their culture and identity. Others, including Najma Heptullah, then in Congress, said a Muslim wedding was a contract not a sacrament. Husband’s responsibility ended with divorce.
This wasn’t just confined to the clergy. Even Syed Shahabuddin, with top education, a former diplomat and brilliant intellectual, weighed in on the conservative side. He challenged the judgment intellectually and politically by contesting the Kishanganj by-election in Bihar (which Rajiv Gandhi’s Congress had won by 1.3 lakh votes a year earlier) and won. I went to speak with him as well and he, as usual, spoke with clarity. This, he said, was a fight against the “inexorable process of assimilation”.
And how was he fighting it? By destroying the Congress party’s Muslim vote bank: “This Humpty Dumpty of Congress-I’s Muslim vote bank has come crashing down. And all the king’s horses and all the king’s men cannot put it back here again.”
Shahabuddin was right in that the Congress Muslim vote bank has never been rebuilt post-Shah Bano. But it also angered the Hindus and fuelled the BJP campaign of minority appeasement.
The many further blunders Rajiv made in trying to assuage the Hindus now, including the unlocking of the Babri-Ayodhya site — which Jairam Ramesh recently acknowledged as an error — angered the Muslim minority even more, and failed to convince the Hindu majority. The ultimate political outcome is the two successive majorities for Narendra Modi’s BJP. Remember again, it was all about a Rs 500 a month alimony for a 73-year-old, mostly illiterate and poor divorcee.
Also read: Supreme Court cannot become the priest between Indians and their Gods
There were many voices of modernity within the Muslim community. Arif Mohammad Khan, then a minister in Rajiv’s Cabinet, argued for not interfering legislatively with the SC judgment. “My faith, Islam is progressive and modernising,” he said in an interview for the same story. Ultimately, he had to resign.
Quoted in the same 1985 story is Shahid Siddiqui, then a young editor of Urdu daily Nai Duniya and now one among the five Muslim notables who had that conversation with RSS chief Mohan Bhagwat this month. “Every small-town maulana has become a leader now with narrow objectives and narrow interests,” he had said.
There was also Prof Kausar Azam, who taught political science at Hyderabad’s Osmania University. She rued the absence of reformers like Mahatma Gandhi and Raja Ram Mohan Roy among Muslims and the sad fact that a moderniser like Hamid Dalwai died so young. Another modern voice featured in the story is that of noted JNU professor Zoya Hassan.
The liberal, modern voices then were all overlooked and there were political consequences. Consequences so serious that almost four decades later, we are caught in a somewhat similar tussle over the hijab issue. The issue of ‘choice’ here is again a code for protecting culture, identity, pushing back the process of ‘inexorable assimilation’ and so on.
The big difference is that the educated, respectable and established Muslim voices of the kind that were on the modernising side on the Shah Bano issue have crossed over. They fought a good moral and intellectual battle on Shah Bano and lost. They are fighting on the opposite side now, mostly because they worry about Narendra Modi. They are set to lose again, whatever the verdict. And yet again, as with Shah Bano, BJP will be the only gainer.
Also read: Rahul Gandhi is making his father’s Shah Bano-Ayodhya mistakes and fighting the war on BJP’s terms