Karnataka Hijab row: Decoding the democratic sense of freedom

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A simple answer to the question ‘what is freedom is the absence of constraints. But the sense of freedom is not as easy as defined. It has been explained in a beautiful way in “Freedom”, chapter 2 of class 11th in the NCERT textbook, political theory. However, the absence of constraints is only one dimension of freedom. According to it, ‘Freedom is also about expanding the ability of people to freely express themselves and develop their potential.’

Today, People have their own sense of freedom. In the context of recent comedian’s cases and the Karnataka Hijab row, the debate of ‘absence of constraints’ against freedom has re-emerged. For the concerned comedians and students, there is an illusion that the ‘constitution of India has granted them absolute freedom.’ Absolute freedom in a democracy is neither possible nor desirable. It can only be possible in the ‘state of nature’ as explained by Thomas Hobbes, an English philosopher.

Ideation of freedom

Like some other concepts in political science, the concept of freedom is still been one of the contestant concepts. With the beginning of the social contract tradition, liberty has gained momentum. Thomas Hobbes, an English philosopher and one of the founders of modern political philosophy ideates the notion of the absolute state. For him, people would prefer ‘Security’ over ‘Liberty’ because the state of nature i.e., a society without norms would lead to an anarchical society where ‘might is right’ will be prevailed.

Later, John Locke, an English philosopher and the ‘father of liberalism’ deconstructed the social contract system and reconstructed it again. For him, a contract will be formed and only three rights i.e., legislative, executive, and adjudicative would be transferred to the state. He tried to approach the middle path away from the Hobbesian notion. But the issue was that people got the freedom to do anything except legislative, executive, and adjudicative actions.

However, the positive dimension of liberty was explained by John Stuart Mill, the greatest philosopher of the 19th century and champion of freedom of speech and expression. J.S. Mill in his essay “On Liberty”, concluded that freedom of expression is a fundamental value of humans. In order to protect this value, there will be a need for constraints of a different kind thus exist and we are subject to them in different situations.

Why do we need constraints?

We cannot live in a world where there are no constraints. In the absence of constraints, society would descend into chaos. Since by nature every person is different from one other, differences of opinion are bound to exist among people. There can have conflicting ambitions. Competition for limited resources may further corner the disadvantaged section of society. Thus, the weaker section of the society would be more vulnerable to it.

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How many constraints (restrictions) we need on our liberty, could be better explained with the help of liberal political thinker, John Stuart Mill. J.S. Mill gave the concept of harm principle in this regard. It means if somebody’s freedom harms the other person then that person’s freedom can be restricted. He further says that when the harm is serious then only the law needs to call. For minor harm only social disapproval is sufficient.

Similarly, if a comedy content that potentially defames others’ faith followed by harms the emotions of the others, then freedom of the comedian can be arrested for the greater good. Thus, reasonable restriction based on the harm principle is necessary. It is so because ‘absolute freedom’ is a bird that doesn’t exist in reality. Provided restrictions could be justifiable, fair, proportional, and constitutionally moral.

Distinguishing just and unjust constraints

A free society would be one that enables all its members to develop their potential with the minimum of social constraints. It is mentioned in NCERT verbatim – “No individual living in society can hope to enjoy the total absence of any kind of constraints or restrictions.” It becomes necessary then to determine which social constraints are justified and which are not, which are acceptable and which should be removed.

Nelson Mandela, one of the greatest personalities of the 20th century in his book “A Long Walk to Freedom” talks about his personal struggle against the apartheid regime in South Africa. He demanded freedom from the ‘unjust constraints’ like ‘segregationist policies of the white regime’, ‘hardships’ and ‘police brutalities’ were imposed by the colonial master. For this, Mandela spent 28 years in jail.

Similarly, Aung San Suu Kyi in her book, ‘Freedom from fear’ says, “for me, real freedom is freedom from fear and unless you can live free from fear you cannot live a dignified human life”. She was kept under house arrest in Myanmar and separated from her children. In fact, she was unable to visit her husband when he was dying of cancer, because of fear that if she left Myanmar to visit him in England she would not be able to return. These constraints imposed by Myanmar were ‘unjust.’

The above two stories are struggles against unjust constraints. Reasonable restrictions imposed under Article 19 of the Indian constitution are examples of just constraints – security of the state, public order, morality, contempt of court, sedition, etc. Even in the context of the right to religious freedom under Article 25, there are three reasonable constraints – Public order, Health, and Morality. In fact, except Article 17, no fundamental right has absolute character.

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Morality builds legitimacy for constraints

Now questions about the recent incident of Karnataka over Hijab are asked. Judgments of the various court have been put to substantiate his/her stand. It is true that Puttaswamy Judgement concluded ‘choice is the fundamental right’ and everyone is free to choose his/her own dress, food, and way of life. It is also true that Kerala high court stated that the scarf of Muslim women is protected under Article 21.

All these judgments are close to fundamental rights and none of them has absolute character. In 2005, the supreme court upholds a one-year sentence for cow slaughter to Khursheed. However, this judgment can’t be challenged on the notion of ‘choice to food.’ Various courts have upheld the ban on cow slaughter. Muslim women have the right to wear scarves till it doesn’t harm health, morality, and public order.

To understand it, let look at some more cases – First, In China during Mao’s regime, all the people had to wear ‘Mao suits’ based on the argument that it was an expression of equality. Second, A fatwa was issued against Sania Mirza for her style of dress that was considered, by one cleric, to be against the dress code prescribed for women. Third, The rules of a test match in cricket require every cricketer to wear a white dress. Fourth, Students are required to wear school uniforms.

The first two cases can be considered as ‘unjust constraints’ based on moral conscience. But constraints in the third and fourth cases can’t be called ‘unjust’ at least morally. On a reasoning basis, it can be argued that the clergy has no authority to rule so. Mao doesn’t enjoy legitimacy since he was not elected through free and fair means. Thus, it is a necessary condition that ‘restriction’ should be imposed by the concerned authority or delegated authority in proportion.

Politics of paradoxes in Karnataka Hijab row

‘Doctrine of essentiality’ has a lot of subjectivity. It is not clear who is going to decide what is essential to religious doctrine. Due to sectarian differences within the faith put forward contradictory interpretations. For example, the meaning of ‘Jihad’ varies from person to person in Islam. Some justify violence in the name of it while others see it from the moral perspective. Apart from this, who is going to decide essentiality is also a matter of dispute because of the lack of legitimacy and fairness in religious leaders.

Apart from this, there are paradoxes in politics. Religion and politics have a very close connection. For example, in 2011, Iran was prevented from playing an Olympic qualifying match against Jordan because of its hijabs. The guardian posted with heading – “When women were forced to choose between faith and football”. Similarly, after the Karnataka Hijab row, Malala tweets – “College is forcing us to choose between studies and the hijab”. For Malala, “refusing to let girls go to school in their hijab is horrifying”.

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Her hypocrisy can be understood from his book, “I am Malala” where she confessed –  “wearing a burqa is like walking inside a big fabric shuttlecock with only a grille to see through and on hot days it’s like an oven.” She went further in another book that she co-authored with Patricia McCormick, “Malala: The Girl Who Stood Up for Education and Changed the World” – “Living under wraps seemed so unfair – and uncomfortable. From an early age I told my parents that no matter what other girls did, I would never cover my face like that. My face was my identity.” Today in the comfort of the west, Hijab today symbolizes freedom for her.

Similar paradoxes are seen in Indian politics. When the legitimate government was passing bills against instant triple talaq, it was often supported with the argument that it has been banned even in Islamic countries like Saudi Arabia. Some parliamentarians like Assassudin Owaisi often counter it by saying that we don’t care about Saudi and any country. Amid the Karnataka row, to defend the hijab, the same person quotes FIFA for allowing women in Hijab for football and FIBA for basketball.

In conclusion: Protect institution of socialization from communalism

It is not about choosing between one at the cost of the other. Nobody is stopping anyone from wearing a hijab at his home or in the market. But schools, colleges, and sports have some collective values. They are the means for socialization. Uniformity is brought in these places to remove the false narrative of “we Vs them”. Nobody is “them” and we all share the same boat as human beings. I think the places which bring equality and extend a sense of collectiveness need to be protected from communalism.

Similarly, no one can boycott mid-day meals made by ‘xyz caste’ in schools as happened in Uttrakhand. Thus, any attempt to disobey rules and regulations of the institution of socialization is nothing but the ‘grammar of anarchy‘ as stated by Dr. Ambedkar. It should be deemed as an attempt to communalize the means of socialization. Excessive ‘assertion of identity with malicious intent is against the principle of harmony and against the value of Indian civilization.

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    shashank

    Very nice, well informed, succinctly put opinions. Kudos.

    July 3, 2022
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