Hijab Controversy: Why Muslim religious scholars need to contemplate!


By Dr. Bilal Ahmad Sheikh | Muskaan Mohi-u-din

Recently the anti-hijab protests over a tragic death of Mahsa Amini after her arrest by the morality police in Tehran for not doing the Hijab properly and the objection to the Hijab in Karnataka’s educational institutions have once again brought the Hijab debate to the fore. While Iranian protests are still going on, the Karnataka Hijab case has been referred to a larger bench of the supreme court that will hear and examine the case afresh as the two-judge bench of the supreme court could not reach a consensus. The Karnataka High court had already given its verdict saying that Hijab is not an essential practice in Islam and thus upholding the Karnataka Government’s ban on Hijab in Educational Institutions.

In Karnataka the objection to the hijab is because it is a religious symbol and as such should not be allowed in a secular institution. Moreover, the critics of Hijab consider it a patriarchal symbol which as per them curtails women’s rights. They associate Hijab with oppression and strongly suggest a complete ban on it which they believe will be empowering for women.

Those who are in favour of Hijab believe that it is education that will be empowering to women more than removing the Hijab from their heads and that if they get a better education, they can make a conscious decision in future on how they want to dress. However, the critics of the government believe that the ban on hijab is a veiled attempt to reduce Muslim way of life from public spaces.

One more group tries to support the right of schoolgirls to wear the hijab essentially on the ground of freedom of choice.

However, the critics argue that the freedom of choice lobby fails to recognize the fact that the families which adopt hijab usually make it mandatory for their female children when they are too young to make a conscious decision about what to wear. They blame the conservative society and arcane interpretations of religious rules that make it virtually impossible for any Muslim girl to exercise free choice.

However, the Hijab vs uniform controversy seems to be a dangerous attempt to create discord in the religiously and culturally plural society. India is well known for its diversity and the efforts of its leaders to unite such a diverse population. In prescribing school uniforms, we must not import the idea from some foreign culture rather it should respect our cultural diversity and moral values. In the name of uniform in educational institutes we don’t force female students to wear pants and shirts the way boys wear it.

Iranian women are fighting against the state-imposed dress code. They burned their Hijab in protests as a symbol of their rejection of the state’s control over their personal choices. In both the cases women want the state to let them follow their will. To force someone to wear the Hijab against their choice is as disgusting as to compel someone to disrobe the Hijab against their will. In Iranian case the state has no right to force women to follow a religious obligation by citing the mandatory religious rule. It is between God and his followers. If a person is not respecting the religious code, it is the God who only can decide the matter. The State cannot become a partner to the God in punishing the people for not following the religious obligations. The Iranian State’s mandatory Hijab law is only reflective of the misogynistic and patriarchal attitude of its leaders.

Why only a few Muslim States interpret the Hijab rule the way which the majority Muslim States don’t not agree with? If we keenly try to observe that why such interpretations are made in some of the countries in recent times, it will become clear that how the local cultural practices and the patriarchal attitude of the society influences the interpretation of the Islamic law. The kind of place given to the women in Taliban controlled Afghanistan is a clear example of how the tribal society’s conservative practices can influence the interpretation of Islamic law. The crude interpretation of the Hijab rule by the Taliban regime only shows their patriarchal attitude.

However, the Quranic ruling on Hijab is interpreted differently by different schools of thought. People say that since Islam has remained unreformed there is a need to reinterpret many things afresh. Since much of the contestations are around the meanings of the Quran and the Hadith, it is hoped that if these were given a contemporaneous interpretation, Islam would become more compatible with the modern world.

Some Muslim scholars say the religious tenet of tajdīd allows for practices under sharia to be modified or eliminated. The concept is one of renewal, an idea suggesting that Islamic societies should be reformed constantly to remain pure. At the same time, others consider the purest form of Islam to be the one practiced in the seventh century. Nevertheless, modern governments have been known to alter laws considered to be Islamic. Recently Saudi Arabia cited Islamic law when it granted women the right to drive in 2018. In India many parts of Sharia were modified by the modern secular State. When Britishers started ruling India and continued with the Sharia law of their Mughal predecessors, they found many parts of the Sharia incompatible with the modern society and thus modified them, the job that has been ascribed in Islam to the Ulemas. For example, the law of homicide (Qatl) under Islamic criminal law was based on the philosophy of 7th century tribal society where principles of Diya (financial compensation paid to the hiers of a victim and Qisas (equal retaliation-eye for an eye) made it a civil dispute rather than corrective punishment by the State to maintain order. The Britishers made it an act against the State. More recently the Indian government banned the Triple Talaq or talaq-e-biddat (an instant divorce) that has no support in Quran. Instant Triple Talaq is already banned in many Islamic countries. One thing common to all the modifications or reforms of Muslim society/Law by the modern secular law agency is that in every case it has been held that the modified rule/ practice is not essential Islamic practice, or the reform is not against the essence of Islam. The supreme court order in 2017 which declared Talaq-e-biddat as unconstitutional in the case of Shayara Bano vs Union of India and the amended Muslim Women (Protection of Rights on Marriage) Act, 2019 were hailed by many to have restored the originality of divorce law as sanctioned under Islam. It was declared unconstitutional on grounds of being arbitrary and against the Quran. The majority held that the practice was not covered by the Quran and therefore could not be protected under Article 25. Instead of supporting such a good reform a section of Muslim clergy and laymen opposed them.

There used to be practices sanctioned by Islam in 7th century but with the passage of time their incompatibility with modern society became so pronounced that no one insisted on their continuance. For example, in the 7th century Arabia the inhuman practice of slavery was so deep rooted that even the Qur’an does not explicitly condemn slavery or attempt to abolish it. Nonetheless, it does provide a number of regulations designed to ameliorate the situation of slaves. With the passage of time the institution itself became incompatible with modern society. Can they revive it in the modern society by citing that it was allowed by Islam? Another practice which was widely accepted by Muslim scholars in pre-modern times was concubinage. A concubine was a slave-woman with whom her master engaged in sexual relations. However, modern Muslims, both scholars and laypersons, do not consider slave concubinage to be acceptable in the modern world and believe that sexual relations are religiously permissible only within marriage.

Moreover, there is significant debate over what the Quran sanctions versus what practices come from local customs. Professor Rashid Shaz, an Islamic scholar at Aligarh Muslim University writes in this context that “One of the greatest reasons for our decline is the fact that over time we gave so much importance to local customs, concepts, norms and traditions that the real spirit of Islam got buried under them. In most Muslim societies, the conception or roles that have been assigned to Muslim women, have become more embedded in local custom and traditions than Islam, though we have evolved them to the status of sacraments! Whereas the fact is that the woman of Prophetic era is quite different from the traditional religious woman of our times.” On the hypocrisy of advocates of conservatism, he further writes that “You did not consider it praiseworthy that your own daughter should study in a co-educational medical institute, but when you needed to have one, you thought it better to consult a Muslim woman doctor. There was a clear contradiction in what you preached and what you practiced.”
Their interpretations of Islamic law are believed to have been influenced by the social milieu they live in. Allow Muslim women to offer the namaz in Masjids the way there is a provision for it in Islam, you will observe the intensity of opposition from the conservative group who would reinterpret the ruling as per their patriarchal mind setup.

So, the Muslim scholars need to contemplate not only the discourse around the Hijab and the conditions perpetuating the mandatory wearing of it but also many such rules which need to be changed due to change in times i.e. ijtihād based renewal. The conservative Muslim should also keep it in mind that tajdīd or ijtihād does not mean any unconditional surrender to the mainstream modern culture, making the divine instruction subject to the influence of people’s changing thoughts and social constructs. The matters of principal and fundamental Islamic values/rules are not subject to these methods of renewal and reform in the sense of forming new positions compatible with new realities. However, we still need them to correct our own understanding of some of these concepts and values. If we procrastinate further the modern secular law agencies may hijack its banner as has been observed from time to time. We should understand that Islam has a flexible legal framework that can appropriately engage with changing realities. Moreover, in the case of Hijab it is not a question of different interpretations of religious beliefs but a matter of personal choice and freedom, which needs to be respected and protected.

1-Dr. Bilal Ahmad Sheikh teaches history at Government Degree College Sogam, Kupwara, J&K) 2- Muskaan Mohi-u-din ( B.A. 5th semester student at the same College).


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