Are courts the fora to resolve this? Would we deny vaccines to someone on the basis of what they wear?

It did not start with a few women being suddenly radicalised to turn up in hijab but ostensibly with Hindu right wing groups deciding to manufacture a controversy. And now, the row around headscarves and saffron shawls in Karnataka is in danger of spiralling out of control.

While the matter has been referred to a larger bench, the Karnataka chief minister has announced a closure of educational institutes and the Madhya Pradesh education minister has spoken about an impending hijab ban in the state. But how did it come to this? What is the way out? And are courts the fora to resolve this or is it time for the political executive to step up to the plate?

Over the last few days, women have been locked out of their classes because the college or school authorities claimed that wearing a hijab did not comply with uniform regulations; Hindu students started sporting saffron gear in support of the hijab ban. In a viral video, a mob of saffron-clad men were seen chasing and harassing a woman in hijab after she parked her scooter and walked briskly into her college building. She later told NDTV that she did not recognise the majority of her tormentors as students from her college.

Only on the surface is this a controversy about rules and uniforms. The focus on the dress choices of Muslim women makes it clear that it is about putting Indian Muslims in the place reserved for them according to the political playbook of the Hindu right wing﹘a policy that has paid handsome electoral dividends too. Riots in Muzaffarnagar, the Gujarat massacre, the Citizenship (Amendment) Act, the instant triple talaq law, the beef bans have all been fundamentally about attacking Muslims and their political rights. If you accept that as the starting point then the recent controversy starts to make sense.

Is the hijab an essential religious practice? That is a nuanced question and scholars and lawyers are arguing the toss in court as if reference to religious texts can settle a matter objectively. India should avoid that debate.

It does not matter whether you or I believe the hijab to be a symbol of Islam. The facts are plain. In India, the only women who choose to wear hijab are Muslim, and many who choose not to wear it are Muslim too. In either case, in some instances, there may be an element of societal pressure, and the decision may be linked to education, culture and socio-economic factors. But no woman in India is free of pressures that impact personal choices in one or more areas of life. Why does no one ask a Sikh man why he wears or doesn’t wear a turban? Because we assume that he, as a man, always has a choice.

Should a school, a college or the government prescribe a uniform or a dress code for students? Yes, and no. If they are to be useful, codes, rules and guidelines should be formulated only by discussion with, and assent from, all stakeholders. We need to start from first principles and decide why a school would need a prescribed uniform. It is common sense to suggest that whatever schools decide, it should support their primary purpose of ensuring a high quality educational experience for all.

The clearest argument to have an agreed dress code is to achieve some semblance of uniformity among school children, if only to avoid a fashion race and escalating costs for poor parents. In college, that case becomes weaker. The world over, most post-16 colleges and higher education institutes have moved away from uniforms and rely solely on broad guidelines to ensure a modicum of sensible and modest attire. In a conservative and misogynistic India, there is little risk of students turning up in hot-pants, crop tops or sports bras.

If college authorities or the government decide to lay down a strict and highly-specified uniform without consultation and regard for the overarching educational objectives, they run the risk of sparking protest. If they must issue guidelines, it is best to leave it broad, allow for cultural differences, and leave the rest to the good sense of students.

Should the matter be left to the courts? Many seem to think that would be a good idea.

But let’s recall the civil rights movement in America, where, despite Lincoln’s emancipation proclamation a century earlier, the country remained deeply divided and segregated along racial lines in 1963. In June, in the third year of his presidency, John Kennedy decided to turn away from his earlier stand of waiting for the legal or constitutional route to wind its tortuous way toward ensuring civil rights for African-Americans. Persuaded by the arguments of Martin Luther King and convinced by Robert Kennedy, the Attorney-General and his brother, he addressed the nation to make the moral case for guaranteeing civil rights for all Americans. “It is better to settle these matters in the courts than on the streets, and new laws are needed at every level, but law alone cannot make men see right,” he said. “We are confronted primarily with a moral issue…Whether we are going to treat our fellow Americans as we want to be treated.”

Given the polarised nature of the debate so far and the involvement of right wing Sangh Parivar outfits and BJP-led governments in Karnataka and Madhya Pradesh, I hold little hope for an objective and balanced judgment. In many cases, India’s judges have shown themselves to be craven to power, and willing to bend with the political wind. To misquote Martin Luther King, “the moral arc of Indian justice genuflects at the elbow of power”.

Relying on the courts may be risky for another reason. Like the Ayodhya matter, the dispute could drag on for years, allowing tensions to rise, issues to be conflated, violence to erupt, leaving all sides unhappy. The High Court in Karnataka has referred the matter to a larger bench without giving even interim relief to the woman who petitioned the court. The chief justice part of the larger bench has said “people should not insist on wearing these religious things” till the disposal of the matter.

Unlike in America where Constitutional rights are held as absolute, in India they are limited by ill-defined and subjective considerations such as “maintaining the public order”. However much the white Supremacists of America may hate Ilhan Omar’s Hijab, the courts will always uphold the right of the representative from Minnesota, a Somali-American woman, to wear her hijab in the US Congress; and the state will use all its might to uphold the rule of law. India is very far from that situation﹘the courts look the other way when civil rights are denied and the state is complicit in human rights violations.

So where does that leave us?

We need to hark back to how John Kennedy approached the issue of civil rights in 1963. He presented it as a moral question when he said “the law alone cannot make men see right”. The question here can be presented as a matter of a woman’s choice. The onus is on those who oppose the hijab to explain how it affects them if some women (who happen to be Muslim) choose to wear a hijab to college. What harm does that choice cause to anyone?

If MP’s education minister decides to impose a strict dress code, he should be asked why the real priority is not building more schools and providing better facilities, including toilets for girls, to encourage attendance. How does a dress code work to improve access to better education? Will his health ministry counterpart deny vaccines to someone on the basis of what they wear?

We need political leadership.

I believe Karnataka CM B S Bommai’s decision to close schools and colleges was an act of political cowardice. Contrast his actions with John Kennedy’s, who ordered federal control of the national guard and ordered them to remove Governor George Wallace from his protest at the college doors, to allow African-American students to enroll. Mr Bommai should stand up for what is right, make the moral case for the primacy of women’s education, argue for common sense, challenge those who oppose the hijab to justify their opposition on logical grounds, defy the right wing groups spreading hate against Muslims and enforce the rule of law.

Civil society has a duty to stand by the girls and women in the eye of the storm. So far there has been universal praise for their courage in the face of frightening levels of organised harassment, but praise on social media is not enough. Industry leaders, academics, editors, writers and NGOs should speak up and be counted on the right side of this needless controversy.

As the author and former diplomat Nirupama Menon Rao said in a snub to the Print’s brief editorial, the lone woman who stood up to her harassers in the video “wore a hijab, yes, but to me, as a woman, what is relevant to the current debate is that she came to college driving her own two-wheeler, independently, and with her head held high. There was no sign of regression there”.

Congress leader Priyanka Gandhi got it right when she tweeted, “It is a woman’s right to decide what she wants to wear.” Insisting on respect for that right should be the start as well as the end to the controversy.