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Forcing a woman to adhere to purdah system is unconstitutional, so is dragging one out of it

The ban on face-covering in Sri Lanka is a precautionary security measure and the Kerala educational organisation’s circular prohibiting the practice — notably, issued before the Sri Lanka incident — is an admirable attempt to put the record straight on the Quranic injunction concerning women’s dress.

The burqa and hijab have been part of religious and social debates across the world and its total or partial ban anywhere makes international news. (Representational Image)

“To my husband who took me out of purdah and spent the rest of his life regretting it”. This is how the dedication page reads in a Muslim woman author’s autobiography published a century ago. It speaks volumes about the age-old tradition of keeping women in purdah. Having originated in early Islamic history, the controversy as to which of a wide range of outfits — from the burqa (tip to toe gown covering entire body) to hijab (scarf covering head and shoulders) — answers the Quranic injunction on women’s dress code remains unabated till this day.

The burqa and hijab have been part of religious and social debates across the world and its total or partial ban anywhere makes international news. In recent days, the Indian media has given prominent coverage to three related developments — the ban on face-covering hijab in Sri Lanka after the devilish dance of terrorism on the island, the Shiv Sena’s demand for a similar state action in India, and a Kerala educational organisation’s circular to its schools directing that no girl student should cover her face on its campuses across the state.

In India, purdah has had a local variant called ghoonghat (long veil covering head and face) and both have generated legislation and case law. Since the days of British rule, there have been special provisions for pardanashin (literally, sitting in purdah) women in the laws of evidence and civil procedure, irrespective of their religion. In a Kolkata election case, two women voters — a Hindu and a Muslim — approached the High Court seeking exemption from the requirement of a photo identity card on religious ground (Nirmal Sakdar 1961). The court dismissed the Hindu woman’s plea: “The system of purdah is alien to our soil and never existed during the period of the Hindu civilisation. It may be that amongst very orthodox families women are not readily photographed. That however is not an inexorable social practice and in modern days it is neither widespread nor popular.”

The claim of her Muslim sister was also dismissed. Referring to the Quranic verses on the hijab, the court said: “There is no express injunction about keeping purdah. Moderation of social intercourse is advocated and it has been laid down that women should cast down their looks and not display their ornament in public. Annotators hold that there is no absolute injunction against uncovering of the face or the hands. What have been laid down are questions of prudence and general deportment. The matter therefore rests not on religion but on social practice.”

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In a similar case of a Muslim woman in Hyderabad, the judge deciding the matter however thought otherwise. “A citizen professing Islam cannot be put to election to act contrary to religious injunctions to be able to exercise his franchise or to observe the religious practice and forgo the right to vote,” the court said in Peeran Saheb (AP 1988).

In 2015, a purdah-related case reached the Supreme Court. The Central Board of Secondary Education conducting the AIPMT (All India Pre-Medical Test), in a bid to prevent copying in examination, announced a dress code that prohibited full-sleeve shirts and headscarves. Some Muslim women sought exemption from it on religious grounds and obtained relief from the Kerala High Court, subject to a direction to submit to necessary frisking by women invigilators. An appeal to a larger bench of the court by the CBSE was dismissed. A Muslim students’ organisation tried to outsmart the board and in a bid to preempt further appeal approached the Supreme Court with a PIL. It requested the court to direct the CBSE to not apply its dress restrictions to Muslim girls in general. The organisation claimed that the code was repugnant to Islam and hence violated its members’ fundamental right to freedom of religion. But the apex court issued a reprimand: “Faith is not connected to the clothes you wear, your faith will not disappear if you go to the examination centre without headscarf.” The PIL was eventually withdrawn.

I am nobody — despite my command over Arabic and lifelong study of Islamic tenets through their original sources — to explain what the Quran actually says in respect of women’s dress code, as I do not belong to the clan that has monopolised the task of understanding Islam’s holy book. I would just draw attention of all concerned to the recent news items from two Muslim countries, both of which recognise Islam as their state religion and hold the sharia as their main source of legislation. In February this year, Saudi Arabia — the seat of Islam’s holiest places — appointed a woman member of the royal family as its new ambassador to the US. And early this month, Malaysia appointed a woman judge of its federal court as the country’s chief justice. Both these women are seen in public wearing hijab but faces fully uncovered. Will those who claim that face-covering by women is an essential Islamic practice take notice?

The ban on face-covering in Sri Lanka is a precautionary security measure and the Kerala educational organisation’s circular prohibiting the practice — notably, issued before the Sri Lanka incident — is an admirable attempt to put the record straight on the Quranic injunction concerning women’s dress. The Shiv Sena mouthpiece jumping into the fray may not measure up to the legal test of locus standi but the argument of religious freedom to justify face-covering — always and everywhere with no exceptions — will not stand the constitutional touchstone of such a freedom.

Commenting on some judicial decisions relating to purdah, I had once written: “Forcing a woman to strictly adhere to the purdah system against her wish is grossly unconstitutional, but so is dragging one out of it against her own personal decision.” Alas, I cannot invoke the Constitution anymore — in this or indeed in any other matter whatsoever — as we are now sadly living in an age when “Constitution? Who cares” is the order of the day.

This article first appeared in the print edition on May 9, 2019, under the title ‘In the garb of religion’. The writer is professor of law and former chairman, National Minorities Commission.