Karnataka Hijab Ban Part 3: Unveiling the Need for an Intersectional Approach

by | Mar 1, 2023

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About Almas Shaikh and Anjali Rawat

Almas Shaikh is a human rights lawyer from India. She is currently reading as a DPhil candidate at the University of Oxford and is a Barbara Mills Graduate Scholar in Law. She focuses on the role of intersectionality in Indian discrimination law, under the supervision of Professor Sandra Fredman. Anjali Rawat is a DPhil candidate at the Faculty of Law under the supervision of Professor Rachel Taylor and Professor Sandra Fredman. Her academic interests lie at the intersection of family law and constitutional rights. Her DPhil research focuses on the rights of women in the context of polygyny using the framework of substantive equality in a comparative study of India and South Africa. She is an Ambriti Salve Scholar at Exeter College and a Law Faculty Scholar. 

This post continues the analysis of the ban on hijabs within the classroom in Karnataka, India (see also Part One and Part Two). Intersectional discrimination is at the core of the impact of the Government Order (GO) which brought about the Hijab ban. Coined by Kimberle Crenshaw in 1989, intersectionality theory was most recently explored by Shreya Atrey, who conceptualises intersectionality as representing the dynamic of sameness and difference in patterns of group disadvantage. These patterns are based on multiple identities which are best understood as a whole, in their full and relevant context, with the purpose of redressing and transforming disadvantage and oppression.

Although the GO is alleged to be ‘religion-neutral’, it has a disparate impact on a particular community (in this case Hijab-wearing schoolgirls). This is discrimination of an intersectional nature, as it is difficult to demarcate whether such a ban is affecting the schoolgirls either due to their religion or their gender alone. Rather, it affects them precisely due to the intersectional nature of their identity – that of being a Muslim girl.

The GO carries with it two assumptions, firstly, that a Muslim woman (or girl) is completely different from a non-Muslim woman (or girl) through the practice of wearing the Hijab. Secondly, it homogenises the experience of the Muslim woman across India. But the archetypal Muslim woman is merely a social construct: as there is no essential woman, there is also no ‘essential’ Muslim woman. Throughout adjudication for the rights of Muslim women in India, Islamic law has taken centre stage, denying their gender-based identity. The Shah Bano decision and the resulting statute on maintenance claims of a Muslim woman, and the Shayara Bano case on the constitutionality of the practice of talaq-e-biddat (instantaneous triple talaq), clearly demonstrate that there is a hierarchy of the methods used in judicial critical analysis.

Questions of religious practices are thus emphasised, as in the Karnataka case over the issue of ERP. Only once these have been established are the rights guaranteed by the Constitution considered. The effect is the erasure of the gendered identity of Muslim women. Instead, intersectionality argues that these two identities coexist: the dynamic of sameness (the collective experience of women) complicates the dynamic of difference (based on religious practice, caste, class and other factors). Not only does the law specifically target Muslim girls but it goes further in denying education to Muslim girls who wear the hijab. The diverse and intersectional identities of Muslim women/girls are thus conflated with the individual practice of wearing of the hijab. The GO (which remains in force) categorically negates this diverse identity, and enforces a thick concept of uniformity (or equality) hinging upon the dress code.

Unfortunately, the split verdict of the Supreme Court by Justice Gupta and Justice Dhulia does not tackle the issue of intersectionality directly, if at all. The alleged goal of equality practiced through the uniform dress code, according to Justice Gupta, is to ‘instil a sense of oneness, diminish individual differences, helps focus on learning as students would not be bothered about their social status, improves discipline, fewer conflicts in school, and promote school spirit’ [193G]. In fact, students are encouraged to ‘not grow with a specific identity, but under the umbrella of equality guaranteed under Article 14 transcending the group identity’ [158G]. This formal understanding of equality negates the diversity of Indian society. Despite this case having the rich factual matrix which offers the opportunity to foreground the issue of intersectional discrimination at the forefront, it does not make any reference to it.

In Justice Dhulia’s judgment, there is an indirect and partial reference to intersectionality. It acknowledges that ‘it is much more difficult for a girl child to get education, as compared to her brother. In villages and semi urban areas in India, it is commonplace for a girl child to help her mother in her daily chores of cleaning and washing, before she can grab her school bag. The hurdles and hardships a girl child undergoes in gaining education are many times more than a male child’ [66D]. This reference to gendered experiences of educational opportunities, and the comparison of the urban-rural divide is promising. However, no direct allusion is made to the fact that Muslim women are already suffering from group disadvantage, represented by markedly lower literacy and employment rates. Denying education in such a situation, by a state authority, is tantamount to ignoring the social reality and enforcing a flattened, two-dimensional idea of equality. Instead, by acknowledging and assessing multi-layered systems of discrimination (patriarchy and islamophobia), intersectionality can be used as a tool to achieve substantive equality.

It is therefore critical that the pending appellate court judgment recognises oppression through the dual lens of religion and gender in order to redress disadvantage and to transform the social norms which have perpetuated the intersectional marginalisation of Muslim girls and women.

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