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Is Supreme Court right in prohibiting hijab during AIPMT examination?

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By Nithin Sridhar

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The Supreme Court has decided not to allow students appearing for the re-test of All India Pre-Medical Test (AIPMT) to wear hijab (Muslim head scarf) during examination.

A bench led by Chief Justice H L Dattu was hearing a petition by Students Islamic Organization (SIO) of India requesting the SC to allow Muslim aspirants appearing for the AIPMT re-test to wear hijab, after CBSE prohibited the candidates appearing for AIPMT from wearing hair pins, head bands, scarves, belts, caps, and full-sleeve clothes according to a report in The Hindu.

The SIO had petitioned saying that the CBSE directions will prevent Muslim students from adhering to their religious principles. Senior advocate Sanjay Hegde who appeared for the organization submitted in the court that the head scarf is essential to Islamic religious practice and the students are supposed to wear it.

Responding to this, the Chief Justice said: “Faith is not connected to the clothes you wear. For three hours, you adhere to the rules (of CBSE) when you write the exams. Do this for the sake of the exams, which has been already re-scheduled. The court cannot be moved for such small issues,” according to the report.

This decision of the SC upholding CBSE directive must be seen in the background of the AIPMT examination and why it was ordered to be re-conducted.

Major Fraud in AIPMT examinations

In May, Haryana Police arrested a gang of four people who were involved in leaking AIPMT question papers. The gang included two dental surgeons and one MBBS student and one other person.

The gang used mobile phones, bluetooth devices, shirts, and bras fitted with chips and connected to earpieces to leak answers to the students. They had allegedly taken 15-20 Lakhs from many students to supply them with answers.

They had given a few students specially configured mobile phones and shared the answers through Whatsapp. A few other students were provided with sim-cards fitted vests and Bluetooth-enabled earpieces and answers to them were given through phone calls.

This resulted in the Supreme Court asking the CBSE to conduct a fresh AIPMT examination. Therefore, to prevent frauds through use of technology and other means in this fresh AIPMT examination, the CBSE laid strict guidelines prohibiting wearing full sleeve shirts, caps, scarfs or headbands.

The Islamic viewpoint

Hijab is an Islamic head covering that covers the head and the neck, but leaves the face exposed. Hijab is different from other Islamic head coverings like niqab that covers even the face, exposing only the eyes and burqa that covers whole body from head to toe including the eyes, which are covered through a mesh.

The traditional Islamic scholars and ulemas hold that head covering is mandatory for Islamic women. They argue that it is mandated in Quran itself that women should cover their heads.

Sayyid Muhammad Rizvi in “Hijab, The Muslim Womens Dress, Islamic or Cultural?” says: “The requirement of hijab is a Qur’anic command. The basic requirement is that a Muslim woman should cover her head and bosom with a khimar (a head covering), and her body with a jilbab (a loose over-garment). Of course, she can leave her face and hands open

He further quotes Quran 24:30–31, which says: “Say to the believing women that: they should cast down their glances and guard their private parts and not display their beauty except what is apparent, and they should place their khumur over their bosoms.”

Explaining the verse, Sayyid Muhammad Rizvi says that “Khumur” refers to a piece of cloth that covers the head. He further adds that: “According to the commentators of the Qur’an, the women of Medina in the pre-Islamic era used to put their khumur over the head with the two ends tucked behind and tied at the back of the neck, in the process exposing their ears and neck. By saying, “place the khumur over the bosoms,” Almighty Allah ordered the women to let the two ends of their headgear extend onto their bosoms so that they conceal their ears, the neck, and the upper part of the bosom also.” Therefore, according to him, hijab, or head covering, is mandatory in Islam.

But, Ibrahim B. Syed, President of Islamic Research Foundation International, believes that hijab is not mandatory. He points out that, hijab as a terminology is not found in Quran or Hadith in the context of dress code.

Regarding the Quranic verse, he quotes Muhammad Asad, a well-known translator and commentator on Quran as saying: “The noun khimar (of which Khumur is the plural) denotes the head-covering customarily used by Arabian women before and after the advent of Islam. According to most of the classical commentators, it was worn in pre-Islamic times more or less as an ornament and was let down loosely over the wearer’s back; and since, in accordance with the fashion prevalent at the time, the upper part of a woman’s tunic had a wide opening in the front, her breasts were left bare. Hence the injunction to cover the bosom by means of a khimar (a term familiar to the contemporaries of the Prophet) does not necessarily relate to the use of a khimar as such but is, rather, meant to make it clear that a woman’s breasts are not included in the concept of “what may decently be apparent” of her body and should not, therefore, be displayed.”

Therefore, Ibrahim B. Syed argues that the said verse in Quran speaks about covering of bosom and does not specifically mandate women to wear any head covering.

Hence, there is a lack of consensus within the Islamic community worldwide regarding hijab being mandatory or optional. Though most traditional maulvis and ulemas do consider hijab as mandatory, many Islamic scholars differ with this view.

The Supreme Court’s viewpoint

India is a secular state having people of various religions and faiths. The AIPMT exams faced huge irregularities and frauds due to which the Supreme Court was forced to order a re-examination.

The CBSE placed serious restrictions regarding dress codes because it was found that students had cheated using modified vests and other such things. In order to avoid any kind of cheating, be it by using sim-cards or paper chits, the CBSE prohibited any kind of head covering, head bands, belts, etc.

If the court makes an exception to one community, then another community will ask for the same exception. This would pave way for students violating the dress codes under the pretext of religious obligation and it would become impossible for the examiners to verify the veracity of such claims and prevent any fraud.

It is for this reason, the Supreme Court said: “There were serious problems and we ordered for re-conducting the exam. Now the exam has to be held properly. What if everyone wears a scarf or something else and claims it to be a religious practice? Can an examiner start inquiring into everybody’s faith?” as quoted in The Indian Express.

The court further added that: “One petition is filed saying I should be allowed to wear a cap. Another petition is filed that I should be allowed to wear a kurta since it is my religious practice. Merely because you are wearing something different, should we be allowing such a prayer?”

Therefore, considering the facts that: one, there is no consensus among Islamic scholars themselves regarding hijab; two, it would be ethically wrong if one specific community candidates are shown favor regarding their religious expression in terms of dress and other communities’ candidates are denied the same favor; three, it will be practically impossible to check frauds or cheating if the dress-codes are not imposed uniformly; four, the whole purpose of conducting fresh AIPMT examination will be defeated, if no proper measures are taken to prevent cheating; five, India being a secular state, its administrative affairs should be kept neutral and above any religious considerations; and six, as the SC points out, this is a simple issue, a matter of three hours, and hence there will not be any violation of religion (especially because there is no consensus on the issue of hijab) and students can wear hijab after finishing the exams; the Supreme Court has taken a mature and proper decision by refusing to allow wearing hijab during the AIPMT examinations.

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  • Jagdish Kumar Bhutani

    Let it be a beginning of the dream…All democratic governments need to have a uniform civil code for the equality, freedom, scientific temper and the governance such systems provision for. The faith, bliss, custom, whim or fancies of religion come in the personal domain and should be given adequate protection at personal levels.

  • ‘Varagya Nath

    what about helmet laws for women who claim religious exemption?

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  • Jagdish Kumar Bhutani

    Let it be a beginning of the dream…All democratic governments need to have a uniform civil code for the equality, freedom, scientific temper and the governance such systems provision for. The faith, bliss, custom, whim or fancies of religion come in the personal domain and should be given adequate protection at personal levels.

  • ‘Varagya Nath

    what about helmet laws for women who claim religious exemption?

Next Story

India Gets A Win, Supreme Court Decriminalizes Homosexuality

In December 2013, a Supreme Court bench said that it was for the legislature to look into desirability of deleting section 377 of IPC.

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Homosexuality, India
SC decriminalises homosexuality, victory for gay rights. Pixabay

 In a historic verdict, the Supreme Court on Thursday decriminalised homosexuality between consenting adults by declaring Section 377, the penal provision which criminalised gay sex, as “manifestly arbitrary”.

In separate but unanimous verdicts, a five-judge Constitution Bench of Chief Justice Dipak Misra, Justice Rohinton Nariman, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud and Justice Indu Malhotra partially struck down Section 377 of the Indian Penal Code (IPC) as unconstitutional.

The bench said it is no longer an offence for LGBTIQ (lesbian, gay, bisexual, transgender/transsexual, intersex and queer/questioning) community to engage in consensual sex between two adults in private.

Reading out the judgment, Chief Justice Misra said attitudes and mentality have to change to accept others’ identity and accept what they are, and not what they should be.

Homosexuality, India
LGBTIQ people have a right to live unshackled from the shadow.
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“It is the constitutional and not social morality which will prevail,” said the court.

The verdict sparked celebrations in the LGBTIQ community across India even as the judgment was being read out. Many of the community members who had assembled outside the apex court jumped in joy and distributed sweets.

Chief Justice Misra said consensual sex between adults in a private space, which is not harmful to women or children, cannot be denied as it is a matter of individual choice.

Section 377 will not apply to consensual same-sex acts between homosexuals, heterosexuals, lesbians, the court said, clarifying that sexual act without consent and bestiality will continue to be an offence under section 377.

“An individual has full liberty over his or her body and his or her sexual orientation is a matter of one’s choice,” said the Chief Justice.

“Time to bid adieu to prejudicial perceptions deeply ingrained in social mindset. Time to empower LGBTIQ community against discrimination. They should be allowed to make their choices,” he added.

Homosexuality, India
In separate but unanimous verdicts, a five-judge Constitution Bench struck down Section 377 of the Indian Penal Code (IPC) as unconstitutional. Pixabay

 

In a concurring judgement, Justice Nariman said homosexuality is “not a mental disorder or disease”.

He said the LGBTIQ community has an equal right to live with dignity and are entitled to equal protection of law. He directed the Centre to give wide publicity to this judgment to remove the stigma attached to homosexuality.

Justice Chandrachud said to deny the LGBTIQ community their right to sexual orientation is a denial of their citizenship and a violation of their privacy.

“They cannot be pushed into obscurity by an oppressive colonial legislation… Sexual minorities in India have lived in fear, hiding as second class citizens,” said Justice Chandrachud, adding “the state has no business to intrude on such matters”.

Justice Indu Malhotra said that history owes an apology to the LGBTIQ community for all that they have suffered on account of the ignorance of the majority about homosexuality.

“LGBTIQ people have a right to live unshackled from the shadow,” she said.

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The Supreme Court verdict, which overruled its own earlier judgment, assumes significance as in the earlier round of litigation in 2013, the top court had reversed a Delhi High Court ruling decriminalising homosexuality.

The Delhi High Court bench, headed by then Chief Justice A.P. Shah, had in July 2009 legalised homosexual acts between consenting adults by overturning the 149-year-old law — finding it unconstitutional and a hurdle in the fight against HIV/AIDS.

In December 2013, a Supreme Court bench comprising Justice G.S. Singhvi and Justice S.J. Mukhopadhaya in the Suresh Kumar Koushal and another vs Naz Foundation and others case, had set aside the high court’s judgment and said that it was for the legislature to look into desirability of deleting section 377 of IPC.

The matter was subsequently resurrected in July 2016, when a fresh petition was filed by members of the LGBTIQ community — dancer N.S. Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur — which was then marked to the Constitution Bench by a Division Bench.

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The reference was made on the basis of submission that it was the first time that individuals directly affected by the provision were approaching the court.

Among the petitioners are a batch of current and former students of Indian Institutes of Technology. Claiming to represent more than 350 LGBTIQ alumni, students, staff and faculty from the IITs, the petitioners said that the existence of Section 377 had caused them “mental trauma and illnesses, such as clinical depression and anxiety and relegated some of them to second-class citizenship”. (IANS)