‘India hijab ban smacks of Hindutva extremist rationale’ 

India, the world’s largest democracy is truly in a crucible. Existential threats by fundamentalists to tear it asunder are real. What was, to put in another way, a Petrie-dish of secularism in a country with eight religions, has become a hot-house of despair for its 200 million plus Muslim citizens.

The Gandhi-Nehru experiment of secularism is becoming another Frankenstein, Nationalism aka Hindutva ideology whose roots have finally blossomed with similar resonance of Nazism stalks the sociopolitical landscape.

India’s unelected judicial arm has, lately, become a partner endorsing pogroms against minorities. This evokes a sense of déjà vu. During the Nazi administration, the judiciary succumbed to its ideology resulting in endorsing Nazism under the guise of judicial impartiality reducing Jews to a sub-human status virtually obtaining the consent of ordinary Germans who effectively became Hitler’s willing executioners.

Similarly in SA, with a Nationalist Party packed judiciary, apartheid ideology achieved legitimacy in the minds of whites, Indians and coloureds who got captured and co-opted into becoming its willing executioners.

Resistance mounted by organisations such as the Natal Indian Congress managed to ensure that the world remained alive to the reality of what Nazism achieved, and thus blunted its apartheid cloned variant. Enter the BJP- administered India which has been systematically stripping away the rights of Muslims in a similar Nazi fashion.

After that country’s Supreme Court outcome pertaining to the Babri Masjid in Ayodhya and Ahmedabad, it soon became clear that India’s judiciary was inclined towards emulating Hitler’s Germany bolstered by a decimated and corrupt Congress Party, which is so divided that it is ineffectual as a eunuch.

The Karnataka High Court judgment of 15 March 2022, upholding the ban on the hijab in schools, fits a critical piece of the jigsaw framed narrative that is supported through endorsement by India’s judiciay.

Even though the highest court has yet to rule on the outcome, the Karnataka High Court’s judgment ignites a sense of déjà vu. Alarmingly so because India’s Constitution is secular in nature. The court held that the wearing of the hijab isn’t an essential religious practice’ and therefore did not merit protection under Article 25 of the Constitution of India.

The High Court held that the ban on the hijab in classrooms did not violate freedom of speech and expression. At the heart of the ban was the ‘essential religious practice’ doctrine or the doctrine of essentiality which was developed and introduced, as well as maintained, in the state’s concept of secularism and religious pluralism.

That’s the official narrative espoused and endorsed in that judgment. I beg to differ for it resonates with the philosophy and ideological underpinnings of that now cemented Hindutva rationale.

We cannot look on or away, for the impact of this judgment will be felt all over India as it would seem kosher, since the judiciary has endorsed a school ban, to expand on the ban in the workplace.

Agency is giving way to compulsion. Instead of drawing from the jurisprudence developed by South Africa’s Constitutional Court, which in the judgment of Sunali Pillay, extolled the doctrine of accommodating religious/cultural minorities, the Karnataka High Court determined otherwise.

Hope lies in how the Supreme Court looks at the issue.

Saber Ahmed Jazbhay

Constitutional lawyer
Newlands West,
South Africa.

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