Hijab debate is a pretext for institutionalising state cruelty by Pratap Bhanu Mehta

It is also evident that the motivating principle behind the call to remove the hijab is not progressive equal rights for all. It had four functions: An instrument by which to browbeat minorities and erase Muslim cultural presence in the public sphere; to continue and create a sense of dread and fear; to trap self-described progressives into a politics of “ifs and buts”; and to foment more violence. All four things have come to pass.

What the meaning of hijab is to people who wear it is none of my business; it is not for me to judge. Like many symbols, it can signify anything from dignified faith, self-assertion and empowerment, to oppression. But the important thing from a public point of view is that it does not, on its own, interfere with any project of civic empowerment: It does not interfere with education, holding a job, voting, participating in public life, or achieving anything in life. To, therefore, use it as a pretext for disqualifying someone from teaching or going to college is a travesty.

So progressives fell into a trap by getting into the meaning of hijab. It does not matter what the meaning is. It could well signify patriarchy or anything else; that is a debate to be carried out in the realm of culture, not enforced by administrative law. It is one thing to worry about a culture that might not send girls to school or marry them early, or prevents them from working, or creates a wall of silence around violence against them. But it is absurd to make the argument that someone can uniquely determine the meaning of a choice of clothing and put the entire weight of sociological emancipation on that. If someone wears only saris, what does that signify: Aesthetic preference, sartorial conservatism, patriarchy, national loyalty or what? So this whole question of meaning is a bit beside the point.

In India’s particular context, the progressives fell into the trap of being seen to oppose or defend the hijab, where the truth is that it is presumptuous to do either. Neither is necessary. They also fell into the trap of another equivocation. The hijab is not a moment where liberty or equality are being tested. It is coming when there is an attempt to visibly erase Muslims from India’s public culture. It is also to give progressives that last bit of pretext to be comfortable with the BJP, as if the BJP was carrying out the completion of a liberal project that the Congress had no courage of conviction to pursue. That equivocation, “I am not anti-Muslim, but I am against the hijab,” is in this context simply a pretext to be comfortable with state-sponsored cruelty. It is the code for saying, “They (the minorities) are reactionary.” All communities have all kinds of internal fault lines, but right now the hijab functions to create the stereotype of Muslims that both the BJP and so-called progressives share. The liberal Muslims, justifiably feeling that this should not turn into a Shah Bano moment, are also drawn into the debate over the hijab. That is a cultural debate that might be worth having. But it is irrelevant to what schools are doing to students and teachers.

The mistake in this position is to construct the meaning of the hijab without reference at all to the subjectivity of those who wear it. The court will make the same mistake when it adjudicates the matter under the essential practices test that most of us have been saying is an insidious piece of judicial chicanery. This is religion by fiat, not by the freely defined subjectivity of its adherents. The court can decide what compelling state interest might be under Article 14 or 21. But it should leave the interpretation of religion alone. There is no “objective” determination of the matter, as the court in its hermeneutical foolishness has always tried to maintain. A secular court has to define a secular purpose in terms of the core article of the Constitution and leave it at that. Whether Islam or Hinduism is compatible with that is not its problem. It is not clear that the hijab in school or an odd religious symbol worn by students violates the core interests of the state in liberty and equality.

But the worst part is that these arguments are beside the point. The moral gravity of the moment is that we pretend as if the usual conventions of a healthy democracy are working: That people are making moral arguments in good faith, that disagreements can be negotiated, that the ruling dispensation has no investment in violence and that the courts are here to do constitutional justice. The BJP has succeeded in its aims of constructing the Muslim as a figure of threat. It has also succeeded in fomenting violence and will now play the “Hindus are victim” card. We feel so tainted that even the pretence of making fine distinctions seems only to reinforce this strategy, not combat it. This debate is not about competing visions of secularism. It is about finding every pretext to institutionalise state sponsored cruelty. It will twist even the most liberal ideas or fine-grained distinctions in that direction.