TheDaak review

Is there such a thing as Islamic feminism? If so, does that make the Karnataka Hijab case an example of such a movement in India? 

By Ranjini Ghosh

This paper examines the possibility of an ideological amalgamation of Islam and feminism. Consequently it will envision what such convergence would look like and how it differs from its occidental alternatives. Furthermore, it will use this phenomenon as a critical lens to analyze the 2022 Hijab ban judgment of the Karnataka High Court. The foundational claim of this paper is that a movement for gender equality within a repressive religious edifice is possible. This paper advances the opinion that within that religiosity, it is feasible to imagine a struggle for sexual equality through hermeneutical inquiry. The paper will begin by giving succinct definitions of what the terms refer to. It will then move on to explore the origins of such a movement. It will subsequently use this background to probe the hijab ban case. It will conclude by envisaging a way forward for such endeavors in India. 

The apparent dissonance between Islamic and feminism is largely attributed to two things, prejudicial verses in the Quran and a eurocentric notion of feminism. While both are not entirely untrue, there are several other pieces of the puzzle that make it difficult for Islamic feminism as an ideological system to triumph beyond its local peripheries. Notably, commonly cited sexist verses include “Men are managers of the affairs of women because Allah has made the one superior to the other” (Sura Quran 4:34). This verse implies a clear objectification of women and in imagining them as creatures that need to be ‘managed’, there are underlying notions of passivity and a lack of agency. There are several other verses that liken women to slaves, sexual property and as worthy of receiving lower inheritance than their male counterparts (Sura Quran 4:34). Therefore, at the very least it can be argued that the Quran creates a binary between men and women where their roles are differentiated. Despite allusions to a sexual division of labor, it begs the question whether merely signaling a differentiation necessarily means one sex is inferior vis a vis the other. To put it simply, does allocating different duties organically lead to a system of patriarchal repression? 

Before this paper begins its inquiry, it is essential to explicate the various terms that will be repeatedly mentioned in the analysis. Islam or Islamic in this paper alludes to the relationship between practicing Muslims and the religious texts that they interpret and use as a guiding force in their quotidian lives. Subsequently, feminism in this context refers to a gender equality movement that strives to secure equal rights for women. Patriarchy originally refers to “father rule/rights” (Barlas 2001) but broadly is taken to mean a system of oppression where men dominate women. These terms necessitate more detailed explanations and perhaps separate research projects in themselves but to remain within the confines of this paper, it will limit itself to the aforementioned descriptions. 

Any epistemological inquiry into a polysemic text like the Quran necessitates an acknowledgement of the multitude of interpretations that inform the relevant discourse around Islam. A bulk of this exegesis is done by conservative thinkers who have decontextualized Quranic verses and the teachings of the Ahadith corpus from its time and social milieu. Eminent scholar Asma Barlas claims that 

“modern patriarchy rests on the confusion of sex (biology) with its social constructions (gender) and thus also of sexual differences with gender hierarchies and inequalities. This definition can also be applied to interpret the Qur’an because (Muslim) patriarchies have reconstituted themselves and because Muslims tend to read both sets of confusions (sex with gender and difference with inequality) into the Quran’s teachings as well” (Barlas 2001, 22).

 Barlas argues that traditionally, patriarchy in Christianity was seen to be advocating for God as a father figure. This gendered conception of religion has been wrongly attributed by Orientalist writers to Islam as well. This is erroneous because God in the Islamic conception is not explicitly male or female. Moreover, the problems of deracination of verses from their socio-cultural setting have rendered it to have several conflicting meanings. A worthy example is in the phrase aforementioned in this paper which pronounces men as “managers” of women. Various writers and fundamentalist thinkers like Maulana Maududi have argued that this verse confirms the superiority of the male race over the female one (Mir 1990). 

However, Barlas contends that this verse refers to men as financial managers and not necessarily a manifestation of the sexual superiority of men. While it may seem like a pedantic enterprise, the point here is that the Quran was revealed at a time when women were neither encouraged to be financially independent nor were there multiple avenues for their economic prosperity. At a time like that it was incumbent upon the male member to provide for the family. A verse like this only cements that responsibility into an ecclesiastical duty so as to ensure that women were not deserted by men. Additionally, the project of arguing against a misogynistic reading of the Quran becomes tenuous when there are multiple verses that mention violence against. Yet, this brings up the familiar question about whether including a practice that exists necessarily implies a vote in its favor? 

As mentioned previously, the prevailing metanarrative of Islam as being inherently misogynistic is as much a result of incorrect interpretations as it is of viewing it as a religion in the way that Christianity is seen as a religion. Unlike other Abrahamic faiths where there is an assumption of a certain degree of fixity and reliance on unanimously agreed texts, Talal Asad states that “Islam is neither a distinctive social structure nor a heterogeneous collection of beliefs, artifacts, customs, and morals. It is a tradition” (Asad 2009). It is thus inappropriate to undertake an exegesis that does not account for its inherent specificities. Asad’s conception of Islam as a discourse between the past and the present implies a need to continually engage with texts that may be ancient in origin but can perhaps be still relevant in their essence. He posits that this is what differentiates Islam from Christianity in particular. There is a constant reimagination of the past that informs the present. This is why using Christianity as a sieve to filter out oddities in Islam defeats the goal of understanding its complexities. 

Moreover, since Christianity is often taken as the norm for western scholars, it is worth pointing out that at the time of its creation, Christianity and Islam treated women disparately (Asad 2009). Whereas in Christianity the burden of the ‘Original Sin’ is placed on the woman and she is supposed to have a detrimental effect on the man, Islam believes a unified Self was responsible for the creation of the world. At the outset, there is no power imbalance between men and women. Additionally, there are several biblical references advocating for women as homemakers while men should be the earning members. This conception of the ideal family is not only still  prevalent but often valorised and glorified by conservative political parties. By contrast sexual differences in the Quran are seen to be implicitly patriarchal. The point here is not that one is proper while the other is not but rather to understand the role of media narratives and occidental writings in promoting a particular vision vis a vis another. Coupled with the popularization of fundamentalist clerics, such often erroneous interpretations form the dominant discourse. 

Writers like Barlas and Wadud also trace this androcentric understanding of Islam to the Ahadith corpus (Asad 2009). They argue that since a bulk of these hadiths were disputed and dependent on other scholars and clerics, there was widespread misinformation about the intended learnings of the Prophet. These narratives gradually immersed themselves into the collective conscience of Muslims thereby perpetuating this rhetoric of masculine superiority. Wadud asserts, “No method of Qur’anic exegesis is fully objective. Each exegete makes some subjective choices. Some details of their interpretations reflect their subjective choices and not necessarily the intent of the text” (Jawad 2003, 125) . Wadud draws from Fazlur Rahman’s method of studying the Quran as a work in progress that was revealed periodically and therefore demands a staggered approach to its interpretation. 

Now that the paper has provided a background of what it means to locate gender inequality in Islam it will now move on to assess the nuances of a distinctly ‘Islamic’ feminism. To categorize a distinctly Islamic feminism, it is essential to clarify what it must be distinct from. Much of the discourse around feminism refers to a eurocentric western version of feminism where the goal of gender equality is devoid of any intersectionality (Seedat 2013). This brand of feminism does not consider the complexities posed by identity which are as much a barrier to gender equality as they are to social mobility. The hegemonic nature of eurocentric feminism is in many ways akin to the white man’s savior complex. Both want to save the third-world woman without knowing who she is. There is a universalizing attempt to create a monolithic identity of the post-colonial woman without including any of the social cleavages such as caste, class, religion and ethnicity which are active contributors to their oppression (Mohanty 2003). Although the Third Wave of Feminism tried to erase the homogenizing efforts of liberal feminists, they were still unable to offer an inclusive struggle that did not champion a singular lived experience. 

Fatima Seedat attributes this to the difficulty in cultural translation (Mohanty 2003). She claims that much like Gayatri Spivak had theorized in her seminal work on subaltern studies, European intellectual tradition is simply incapable of translating or communicating oriental lived experiences into their own. To put it simply, by traversing geographies, it should ideally become easier to tell the stories of women to other women, but the dominance of eurocentric ideas of history and culture render it impossible to fit these struggles into an identifiable mold. Seedat states that, “the danger of associating modernity with European ways of being is the consequent devaluing of other, non-European ways of being. In other words, non-European ways of being are required to align with European ones and European intellectual traditions are posited as necessary points of reference for viable ways of being modern” (Seedat 2013, 29) . As a result of this, the post-colonial subject finds themselves trying to fit themselves into a narrative that was not meant for them in the first place. Much like the protagonist of Fanon’s Black Skin White Masks who after years of subjugation  tries to act like his oppressor as a result of cultural alienation (Fanon 1952) women in the Third World have consistently tried to tell their stories in the language of their oppressors which have ultimately been detrimental to their cause. This is where Islamic feminism becomes relevant. 

Islamic feminism is thus not a movement in the way that white liberal feminism is. It is buttressed on religious texts and practices. Its aim is to constitute a struggle that draws its strength from religious texts and fights against their immediate repressors. In her work on women reclaiming Islam, Miriam Cooke writes, “to call oneself an Islamic feminist is not to describe a fixed identity but to create a new, contingent subject position” (Cooke 2000, 93) . The basic premise of this unique positionality is that Islam is as patriarchal as any other historical belief system. But within these oppressive structures, women need to carve out their own spaces that give them agency. A significant chunk of this movement is a feminist reading of the Quran. Started by Aishah ‘Abd al-Rahman in Morocco in the mid 1900s and continued by prominent contemporary Islamic academics like Amina Wadud, Zaynab al-Ghazali and Heba Ezzat, a feminist reading of the Quran that takes a historical approach is the key to universalizing Muslim women’s struggles (Jawad 2003). This critical assessment of religious texts also involves questioning the relevance of traditional practices. A culturally contentious one being the hijab or purdah. 

Seen as a symbol of oppression in western societies, the purdah means different things to different Muslim women. In her book Politics of Piety, Saba Mahmood asserts that what is seen as the face of resistance against religious oppression in the west, the veil symbolizes a form of virtue for Egyptian women (Mahmood 2005). Mahmood argues that the veil or hijab is a bearer of modesty. To wear it is to attain the virtue of true modesty. In this case, if modesty is seen as a value then wearing the veil is its corporal form. It is an active exercise of agency to wear it. In much of the western world, conversations around gender equality and secularization have xenophobic undertones where wearing a veil is seen as being especially backward or regressive. But as Mahmood shows through her ethnographic study, wearing the veil is not necessarily performative for the Egyptian woman. In Judith Butler’s theorization, it is not that the female subject feels pressured to perform in a certain socially acceptable way to sustain her femininity (Mahmood 2005). But rather, wearing the veil is very much a personal decision linked to the formation of her own identity. It is not a socially constructed barrier but an internally cultivated practice. In a similar vein, the struggle for individual freedom of expression linked to a seemingly regressive religious practice is at the forefront of the Karnataka hijab case (2022). This paper will examine the Hijab ban case (Aishat Shifa vs The State Of Karnataka 2022) in Karnataka in light of the background provided in earlier sections of this paper. In December 2021, a few Muslim girls in Udupi were denied entry into a classroom because they were wearing a hijab. As the dissent against the restriction grew to other educational institutions, the state of Karnataka passed an order that allowed educational institutions to enforce a discretionary dress code that does not threaten unity, equality and public order. This arbitrary ban was challenged before the Karnataka High Court on grounds of violating freedom of religion, freedom of speech and expression, freedom from discrimination and the right to life¹.The three judge bench of the Karnataka High Court upheld the ban by claiming that wearing the hijab was not an “Essential Religious Practice” and fundamental rights were subject to reasonable restrictions such as public order and morality. This judgment was problematic for several reasons. The paper delves into why the reasoning adopted in this judgment is not only dangerous for a secular country but detrimental to the ideas of justice and fairness enshrined in the law. 

To begin with, the Essential Practices Test referenced in this judgment refers to a discretionary test devised in the Shirur Mutt case in 1954 where the Court claimed that “what constitutes the essential parts of a religion is primarily to be ascertained with references to the doctrines of that religion itself”.² This test was a legal mechanism by which courts were empowered to decide what fell within the ambit of an ‘essential’ part of religion. Moreover, by defining essentiality as being dependent upon doctrines, the Court had used a Protestant Christianity as the reference point. This is because Hinduism is not a doctrinal religion while Islam and Christianity are (Smith 1990). Therefore, to conceive of a religion as a rigid set of practices and rules is to deny that religion its inherent multiplicity. Even in the aforementioned judgment of the Shirur Mutt case (1954), a Vedantic form of Hinduism which saw true religion as being purely metaphysical and devoid of outward displays was taken to be the norm and therefore rituals and public practices were considered to be inessential. Furthermore, by creating this arbitrary test where a bench was allowed to decide what practice is significant to a faith, it had left the individual out. The individual member of a religious group had no space to reasonably argue what a particular practice could mean to them if there was no doctrinal evidence for it. Like in Saba Mahmood’s research on Egyptian women (2011) who wore the veil as a symbol of modesty, practices may signify different things for different people but subjecting it to a test of recorded history not only devalues the practice but denies the individual a right to their inner conscience. 

In the Hijab ban case, the Karnataka High Court argued that the classroom is a qualified public space and therefore it can be subject to reasonable restrictions. The judges also cited Asha Renjan and others v/s State of Bihar and others³ to argue that when there is a conflict between individual rights and public interest, the former must acquiesce to the latter.⁴ This sets a dangerous precedent for various reasons. Primarily, to subjugate individual rights in the interest of the larger public must necessarily show that there are justifiable grounds to do so. Moreover, applying the precedent in this case would mean that Muslim girls who also constitute a “public” are subservient to the other public i.e. the state. This naturally brings up concerns about the Article 25 rights of the petitioners which confers upon them the right to : 

Freedom of conscience and free profession, practice and propagation of religion Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion. 

Nothing in this article shall affect the operation of any existing law or prevent the State from making any law— 

regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus (Article 25 of the Indian Constitution).

As per this, unless the state is able to show that there is significant damage to public order, health or morality by the use of a hijab, there is no sufficient cause to impose a ban on it. However, this is where the issue gets complicated. In the Karnataka High Court judgment, the court claims, “provisions show that the mandate of the statute is to renounce sectional diversities, to develop humanism and to cultivate scientific and secular outlook. The sectarian approach that certain students will carry their religious beliefs to secular schools run by the State would be antithesis of the mandate of the statute” (Article 25 of the Indian Constitution). The court is effectively trying to argue that an outward display of religiosity is a case against secularism. This would seem well-intentioned if the locus of the conflict was not in India. By that I mean, Indian secularism is different from the strict separation of church and state model that is followed by countries such as the United States and France. Indian secularism is interventionist by nature. The Constitution itself allows the state to intervene in religious affairs. It follows what has been termed as a “principled distance” by Rajeev Bhargava (2013, 79-92). The Indian model of secularism accommodates the public performance of religion. Therefore, the court’s iteration of a possible damage to secularism by an outward display of religion seems out of place in society where schools indulge in lamp-making for Diwali and nativity plays for Christmas. Moreover this judgment goes against the doctrine of proportionality enshrined in the law whereby the punishment has to be proportional to the alleged crime. There must be other ways to cultivate a sectarian outlook that do not involve the violation of an individual’s fundamental rights. Furthermore by renouncing the hijab as not being an essential religious practice, the court has deprived the petitioners of their agency and freedom of choice. 

This judgment was further appealed in the Supreme Court which delivered a split verdict on the issue. Justice Hemant Gupta in agreement with the Karnataka High Court argued that by virtue of a classroom being a qualified public space, there was a need to ensure uniformity and discipline. His views on the matter highlight a cavalier reluctance to accept the petitioner’s freedom of conscience. It is however the dissenting judgment of Justice Dhulia that offers a novel way forward. Side-stepping the Essential Religious Practice issue and instead making this a Right to Education (RTE) problem, Justice Dhulia stated that by banning these women from entering the classroom, the state was effectively denying them education. To disallow a student to enter a class was tantamount to the violation of the RTE Act. Moreover, it is a violation of the freedom of conscience as upheld in the Bijoe Emmanuel case (1986). 

Both the judgments offer interesting ways to analyze this case. Primarily, a woman’s desire to wear a hijab against a state that considers it derogatory is in itself the operationalisation of Islamic feminism. To argue this case in court is a step forward in that direction. Furthermore, as much as this case is about religious freedom and personal choice it is also about reasonable accommodation. The principle of reasonable accommodation demands that the state has to find the least violative mechanism possible to enforce a particular law or rule. If the goal is to achieve uniformity, there must be alternatives that uphold constitutionally guaranteed rights. Additionally, this paper believes that by framing the question as one of religious freedom, the petitioners made themselves vulnerable to the ERP test which ultimately went against them.

Several daily rituals have gained prominence as cultural practices through oral history, shared traditions etc. such as pouring water in the praise of the sun god.  Not all of them can be defended on the grounds of essentiality. It is perhaps wiser to argue the case as one of a violation of privacy and dignity, both of which have been read into Article 21 by the Supreme Court on various occasions and are harder to refute on arbitrary grounds. 

This paper began by introducing the idea of Islamic feminism. Subsequently it analyzed the Karnataka Hijab case. While there is no resolution to the issue since the Supreme Court delivered a split verdict, it still offers many lessons. One of which is the need to make the law a facilitator of agency and not the roadblock in its exercise. Wearing a hijab can be repressive for some and empowering for others. But real empowerment lies in restoring the ability to make a choice. By using repressive government orders and arbitrary jurisprudential tests, the state has failed women. There are no rights for the community if the rights of individuals within those communities are not upheld. The Indian socio-political imaginary intrinsically views religion as a public performance. It does not yield to the Protestant Christian idea of a schism between belief and practice. To create an ERP test is to strip religion off of its essence. As this paper has discussed previously, religion signifies different things to others. Even within that oppression, there are groups such as women who are re-imagining their relationship with their faith to achieve gender equality. They do not need another oppressive structure i.e. the state to stand in the way of that fight.

References:  

Asad, T. “The Idea of an Anthropology of Islam” Qui Parle 17, No. 2 (2009): 1-30 https://doi.org/10.5250/quiparle.17.2.1 

Barlas, A. “The Qur’an and Hermeneutics: Reading the Qur’an’s Opposition to Patriarchy”, Journal of Qur’anic Studies 3, No. 2(2001):15-38  https://doi.org/10.3366/jqs.2001.3.2.15

Fanón, Frantz. Black Skin, White Masks. Translated from French by Richard Philcox. Grove Press, 2008. 

Mahmood, Saba. Politics of Piety: The Islamic Revival and the Feminist Subject. Revised Edition. Princeton University Press, 2011.

Mir, Mustansir. Review of Towards Understanding the Qur’an Translation of Mawdudi’s Tafhim Al-Qur’an, by Zafar Ishaq Ansari. American Journal of Islam and Society 7, No. 2 (1990): 257-258.  https://doi.org/10.35632/ajis.v7i2.2794

Mohanty, Chandra Talpade. “‘Under Western Eyes’ Revisited: Feminist Solidarity through Anticapitalist Struggles.” Journal of Women in Culture and Society 28, No. 2(2003): https://doi.org/10.1086/342914

Jawad, Haifaa. “Muslim Feminism: A Case Study of Amina Wadud’s ‘Qur’an and Woman.’” Islamic Studies 42, No. 1(2003): 107-125. 

Seedat F, “Islam, Feminism, and Islamic Feminism: Between Inadequacy and Inevitability.” Journal of Feminist Studies in Religion 29, No. 2(2013): 25-45. https://doi.org/10.2979/jfemistudreli.29.2.25

Cooke, Miriam. Women Claim Islam: Creating Islamic Feminism through Literature. Routledge, 2000. 

Bhargava, Rajeev. “Reimagining Secularism: Respect, Domination and Principled Distance.” Economic and Political Weekly 48, no. 50 (2013) 79-92.

Footnotes

1. Aishat Shifa vs The State Of Karnataka 2021 AIR SC 842. ↩︎
2. The Commissioner, Hindu Religious vs Sri Lakshmindra Thirtha Swamiar 1954 AIR 282. ↩︎
3. Asha Renjan and others v/s State of Bihar and others [(2017) 4 SCC 397] ↩︎
4. Aishat Shifa vs The State Of Karnataka 2021 AIR SC 842. ↩︎