Hijab ban: Without tolerance, India’s democratic ideals become meaningless

In the raging debate over the right to the hijab to class in Karnataka, what is often missed out is the idea of tolerance. For a multi-ethnic polity such as India, tolerance is the foundational canon, the negation of which renders the democratic ideal vacuous and meaningless. Minimally, tolerance would imply enduring an item or a practice irrespective of the abhorrence that it may engender.

The “no harm test” is usually the guiding principle. The principle holds that a “social disapproval or dislike” for the actions of an individual (or a set of individuals) does not provide sufficient ground for state intervention unless they actually cause harm or are potentially harmful to someone.

A truly expansive idea of tolerance would entail that the concept of harm is most narrowly defined.

Very often, states limit tolerance of practices and beliefs on the plea of a speculative harm to “public order”. But even an elementary doctrine of tolerance pre-requisites that the collapse of public order is explained in terms of concrete harm that the belief system or customary practice has caused – not hearsay or conjecture alluding to it.

Cost-benefit analysis

For a tolerant society and polity, it is both prudent and desirable that before proscribing a practice, it undertakes cost-benefit analysis, and evaluates that whether the objections raised against the given practice are genuine and scrupulous. These caveats are necessary for a just resolution of competing contentions.

It is important to distinguish the old idea of tolerance from the modern concept of toleration – the former could be misconstrued as an act of benevolence or patronage, while the latter enters the domain of rights and entitlements.

The Parsi qissa that the local King of Sanjan in Gujarat, Jadi Rana granted asylum to the refuge-seeking Zoarastrians while conditionally granting them permission to observe their faith in private could be termed an act of tolerance or magnanimity of the ruler.

Similarly, in the much-feted millet system of the Ottoman Turks, religious freedom and cultural autonomy in the form of personal laws was assured to the dhimmies or the religious minorities. But this did not extend to the right of holding political offices.

The Mauryan King Ashoka’s edict introduced the principle of harm along with the idea of religious freedom – that both, praise of one’s own sect and criticism of other’s should be moderate.

The idea of tolerance prevailed in the past too, but was inherently limited, restricted chiefly to matters of faith and conviction. Besides equality of individuals irrespective of faiths in matters temporal or secular was still a far cry.

Constitutional freedoms

But the modern Indian Constitution surpasses the limited nature of tolerance, and comes around to uphold the principle of toleration. It enshrines freedom of conscience and the right to “profess and propagate” religions of their choice. It is the individual who is the bearer of these inviolable rights and not communities or groups.

This would imply that the individuals also have the right to exit from a particular religious form or seek reforms and alterations within. Public order, morality and health are the limiting conditions that constrain the intemperate invocation of religious freedom.

In a complex polity such as ours, both the interpretation of freedom and of the limiting conditions necessitate extreme caution or else it could invite two mutually opposed accusations – majoritarian imposition or minority appeasement.

There are several objections to the hijab or the head scarf. The most vociferous and thereby, the most visible is the one voiced by the Hindutva activists. The crux of the argument rests on uniformity – from sameness in dress and costumes to uniform civil code, the range is wide.

Universality here is conflated with uniformity. The cultural artefacts of this uniformity are invariably drawn from purported norms, beliefs and practices of the dominant culture. In India, though Islam and Muslims have been the objects of hate, the argument is also used to admonish Valentine’s day celebrations, women wearing western dress, deleting portions from school textbooks to protesting against dress codes in Catholic schools.

Clearly a supremacist position, it is incompatible with the most elementary principle of tolerance.

‘Difference-blind approach’

The second kind of objection is advanced by a section of secular-modernists for whom traditional customs and practices per se are repugnant and their public visibility incompatible with liberal values and taste. Feminists subscribing to this “difference-blind approach” have supported hijab ban or refused to lend support to the anti-ban protests on the plea that hijab is a symbol of enslavement, and clearly not an emblem of liberation.

The doctrine of choice that liberal feminists often flag in matters of dress, profession, choice of partners or sexual orientation to counter hegemonic gender discourses is abandoned in this case. The hijab is socially conditioned, runs the argument. Underlying this position is the idea that path to modernity and liberty is singular and pre-ordained. That free will is free only to the extent that it pursues established means and goals.

There is another set of argument that rests on pedagogical practices arguing that how uniforms are the prerogative of the schools and the purpose behind is to obviate distinctions of income groups among pupils attending the same institution.

However, the internal logic of this argument is difficult to sustain when the class distinctions today emerge from the structurally-imposed choice of the schools itself, rather than with the kind of clothes that the student wears. The education system that has been allowed to flourish in the country structurally reproduces inequality than mitigating it. A superficial exercise such as sameness of the costume is of little help in this case.

Besides, the proponents of the hijab or turban do not make their case against the uniform as such, but an adjustment with it. A larger argument would go deeper into the decisions to impose a particular form of dress as uniform – how is the decision made, what considerations prevail, are local preferences and diversity of student population taken into account before arriving at decisions to impose a uniform.

Essential practices

Then there are exegetical struggles over religion, texts and ethics and codes prescribed by the faith. While one set – purportedly the progressives – argues that hijab is not an Islamic practice at all, and that textual injunction is only for modest dressing, the votaries for hijab argue that their religion binds them to it.

The trouble is that these are not merely internal interpretive contestations of the faithful over their religion but that modern courts are invariably mobilised. And what the courts have done, from the Shirur Mutt to the Anand Margi case, is to extend legal protection to only those practices they deem to be essential to that religion.

Legally therefore, the hijab can only be saved if it is framed squarely within the essential practice paradigm – a move which may render a very monochromatic view of the religion itself. Religion as practiced is far closer to the everyday world of people than the scriptural versions reinforced by the courts.

The question of hijab raised by the Muslim girls of Karnataka is evidently a complicated one. It rakes up larger debate about uniformity versus universality, women’s liberation and right to choose versus their enslavement, secularism – whether difference-blind or multi-cultural and so on. This is a question that “homogenous” “nation-states” of Western Europe have been grappling with for long.

In contrast, the question of identity in India appeared far more settled despite occasional flare-ups. The doctrine of toleration offers a guide to a durable resolution. The “no harm test” is critical here. It necessitates separation of “abstract harm” from “concrete harm”.

The former derives from conjectures, speculations, pre-dominant assumptions or utopian idea of emancipation. In contrast, the latter is evidently injurious to the individual or group. Wearing the hijab or habit, sporting a beard, having a turban or a skull cap offers no concrete harm. On the contrary, there denial could be deleterious, and adversely affect believing individual’s chances of pursuing a profession, seeking education or public office.

What we are witnessing is the drawing of equivalence between those who wish to articulate their dearly held consciences on their bodies and persons, and those who violently wish to erase that insignia from the public domain – in the name of maintaining public order, restoring normalcy and more.

In diverse and deeply divided societies, integration is a challenge. Toleration underwrites integration.

Tanweer Fazal is professor of sociology at University of Hyderabad. His email address is fazaltanweer@yahoo.co.in.