Monday, 19 September 2022

Iran Women Protest against Hijab - The hijab case and the essential practices doctrine

 Iran protests: Women burn headscarves in anti-hijab protests

By David Gritten and Oliver Slow

BBC News


Published

10 hours ago


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A woman stands on top of a car bonnet and sets her headscarf on fire on 19 September 2022 in central Tehran during protests for Mahsa Amini

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A woman set fire to her headscarf during a protest in Tehran on Monday

Female protesters have been at the forefront of escalating protests in Iran and have been burning headscarves, after the death in custody of a woman detained for breaking hijab laws.


Demonstrations have continued for five successive nights, and reached several towns and cities.


Mahsa Amini died in hospital on Friday after spending three days in a coma.


In Sari, north of Tehran, large crowds cheered as women set their hijabs alight in defiant acts of protest.


Ms Amini was arrested in the capital last week by Iran's morality police, accused of breaking the law requiring women to cover their hair with a hijab, or headscarf, and their arms and legs with loose clothing.


She fell into a coma shortly after collapsing at a detention centre.



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There were reports that police beat Ms Amini's head with a baton and banged her head against one of their vehicles, Acting UN High Commissioner for Human Rights Nada al-Nashif said.


The police have denied that she was mistreated and said she suffered "sudden heart failure". Ms Amini's family has said she was fit and healthy.


The 22-year-old was from Kurdistan Province in western Iran, where three people were killed on Monday as security forces opened fire on protesters.


Mahsa Amini

IMAGE SOURCE,MAHSA AMINI FAMILY

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Mahsa Amini, 22, died in hospital in Tehran on Friday

"Mahsa Amini's tragic death and allegations of torture and ill-treatment must be promptly, impartially and effectively investigated by an independent competent authority, that ensures, in particular, that her family has access to justice and truth," Ms Nashif said.


She noted that the UN had received "numerous, and verified, videos of violent treatment of women" as morality police expanded their street patrols in recent months to crack down on those perceived to be wearing "loose hijab".


"The authorities must stop targeting, harassing, and detaining women who do not abide by the hijab rules," she added, calling for their repeal.


An aide to Iran's Supreme Leader Ayatollah Ali Khamenei paid a visit to Ms Amini's family on Monday and told them that "all institutions will take action to defend the rights that were violated", state media reported.


Senior MP Jalal Rashidi Koochi publicly criticised the morality police, saying the force was a "mistake" as it had only produced "loss and damage" for Iran.


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What are Iran's hijab laws?

Following the 1979 Islamic Revolution, authorities in Iran imposed a mandatory dress code requiring all women to wear a headscarf and loose-fitting clothing that disguises their figures in public.


Morality police - known formally as "Gasht-e Ershad" (Guidance Patrols) - are tasked, among other things, with ensuring women conform with the authorities' interpretation of "proper" clothing. Officers have the power to stop women and assess whether they are showing too much hair; their trousers and overcoats are too short or close-fitting; or they are wearing too much make-up. Punishments for violating the rules include a fine, prison or flogging.


In 2014, Iranian women began sharing photos and videos of themselves publicly flouting the hijab laws as part of an online protest campaign called "My Stealthy Freedom". It has since inspired other movements, including "White Wednesdays" and "Girls of Revolution Street".


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Ms Nashif also condemned "the reported unnecessary or disproportionate use of force" against the thousands of people who have taken in part in protests against the morality police and the hijab since Mahsa Amini's death.


Hengaw, a Norway-based organisation that monitors human rights in predominantly Kurdish areas, said 38 people were injured on Saturday and Sunday when riot police fired live ammunition, rubber bullets and tear gas at protests in Saqez and Sanandaj, the capital of Iran's Kurdistan province.


The group reported that three male protesters were shot and killed in clashes with security forces on Monday - one in Saqez and two others in the towns of Divandarreh and Dehgolan - as the unrest escalated. It had previously reported the death of a second man in Divandarreh, but relatives said he was in a critical condition in hospital.


In Tehran, videos posted online showed women taking off their headscarves and shouting "death to the dictator" - a chant often used in reference to the Supreme Leader. Others shouted "justice, liberty, no to mandatory hijab". In the northern province of Gilan, protesters also clashed with police.


A woman who took part in a protest on Monday night in the northern city of Rasht sent BBC Persian photographs of what she said were bruises she suffered as a result of being beaten by riot police with batons and hoses.


"[The police] kept firing tear gas. Our eyes were burning," she said. "We were running away, [but] they cornered me and beat me. They were calling me a prostitute and saying I was out in the street to sell myself.


Another woman who protested in the central city of Isfahan told the BBC's Ali Hamedani: "While we were waving our headscarves in the sky I felt so emotional to be surrounded and protected by other men. It feels great to see this unity. I hope the world supports us."


Tehran Governor Mohsen Mansouri tweeted on Tuesday that the protests were "fully organised with the agenda to create unrest", while state TV alleged that Ms Amini's death was being used as an "excuse" by Kurdish separatists and critics of the establishment.


More on this story




The hijab case and the essential practices doctrine


A two-judge Bench of the Supreme Court of India is presently hearing arguments on the correctness of a Karnataka High Court judgment that upheld the ban on the use of the hijab by students in Karnataka. Over the last few days, counsel for the petitioners has addressed a bundle of different issues, ranging from the rights of students to freedom of expression, conscience, and religion to the disparate impact that the ban has had on the right to education of Muslim women.


In theory, the issues emanating out of these submissions ought to be capable of easy resolution, through an application of ordinary doctrines of constitutional law. But, as transcripts from the hearings have shown us, every time an argument over religious freedom in India is made, it invariably mires itself in the court-crafted doctrine of essential practice. This requires judges to engage not merely in legal analysis but also in theological study — something an education in the law scarcely equips one to perform.


Possible actions by the Bench


The Karnataka High Court made three primary findings in its judgment. First, it held that the use of a hijab is not essential to the practice of Islam. Thus, the right to freedom of religion was not violated. Second, it ruled that there exists no substantive right to freedom of expression or privacy inside a classroom and, therefore, these rights were simply not at stake here. Third, it held that the ban did not stem directly out of the government’s order, which only called for a uniform dress code to be prescribed by the State or school management committees, and, hence, the law did not discriminate, either directly or indirectly, against Muslim students.


To decide on the correctness of this verdict, the Supreme Court need not answer all the questions posed before it. A reversal of any of the three findings made by the High Court ought to result in a nullification of the ban. If the petitioners can establish that the law’s seemingly neutral language does not negate the ringfencing of most forms of expression against the singling out of the hijab, and for that reason if they can show that Muslim women have been discriminated against, the Bench must reverse the High Court’s judgment. Similarly, if the petitioners can establish that there is nothing to suggest that there exists no right to freedom of expression within the confines of an educational institution, then the onus shifts to the State to show that the ban is proportionate and legitimate. That analysis was never conducted by the High Court because in its belief, classrooms are “qualified public spaces” where individual rights must give way to the interests of “general discipline and decorum”.


The Supreme Court should be able to decide these questions based on settled canons of constitutional law. And if the Bench were to find that the Karnataka High Court erred in deciding either of these issues against the petitioners — and there is substantial merit here to the petitioners’ arguments — perhaps it might be keen on ignoring altogether the question of whether the ban impinges on the right to freedom of religion. For that analysis, on the law as it stands today, requires it to engage in a study of scriptures and conventions, and to then determine how indispensable the practice is to faith.


As a kind of inquiry


The essential practices doctrine owes its existence to a speech made by B.R. Ambedkar in the Constituent Assembly. “The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death,” he said. “…I do not think it is possible to accept a position of that sort… we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious. It is not necessary that… laws relating to tenancy or laws relating to succession, should be governed by religion.”


Ambedkar was striving to distinguish the religious from the secular, by arguing that the state should be allowed to intervene in matters that are connected to religion but are not intrinsically religious.


Indeed, it was in this vein that the Supreme Court, in the case concerning the Shirur Mutt (1954), held that to determine what constituted an ‘essential’ aspect of religion, the Court ought to look towards the religion concerned, and to what its adherents believed was demanded by their faith. But since then, the Court has, with a view to determining the kinds of circumstances in which the state could legitimately intervene, transformed this doctrine into an altogether different form of inquiry.


In a series of cases, the Court has assumed something akin to an ecclesiastical power and determined whether a practice which was religious in nature was also “essential” to that religion. The upshot is a conflation of tests through which the Court is now deciding not only when the state could lawfully interfere in the interests of social welfare and reform, but also which practices are deserving of constitutional protection in the first place.


The effects


The embedding of this test in the Court’s jurisprudence has achieved at least two things, neither of which is particularly desirable. First, it has allowed the Court to narrow the extent of safeguards available to religious customs by directly impinging on the autonomy of groups to decide for themselves what they deem valuable, violating, in the process, their right to ethical independence.


Second, it has also negated legislation that might otherwise enhance the cause of social justice by holding that such laws cannot under any circumstances encroach on matters integral to the practice of a religion. For example, in 1962, the Court struck down a Bombay law that prohibited excommunications made by the Dai of the Dawoodi Bohra community when it held that the power to excommunicate is an essential facet of faith and that any measure aimed at social welfare cannot reform a religion out of its existence.


The essential practices test is not without alternatives. In his concurring opinion, in the case concerning the ban on entry of women into the Sabarimala temple, Justice D.Y. Chandrachud proposed one such doctrine: a principle of anti-exclusion. Its application would require the Court to presume that a practice asserted by a religious group is, in fact, essential to the proponents of its faith. But regardless of such grounding, the Constitution will not offer protection to the practice if it excludes people on grounds of caste, gender, or other discriminatory criteria. As Justice Chandrachud put it, “the anti-exclusion principle allows for due-deference to the ability of a religion to determine its own religious tenets and doctrines. At the same time, the anti-exclusion principle postulates that where a religious practice causes the exclusion of individuals in a manner which impairs their dignity or hampers their access to basic goods, the freedom of religion must give way to the over-arching values of a liberal constitution”.


But until such time as the essential practices doctrine is overruled by a Bench of more than seven judges, the Court is bound to apply its tenets. Perhaps that reassessment will happen when a nine-judge Bench constituted in the review petitions filed against the judgment in the Sabarimala case passes judgment. For now, any Court hearing a matter touching upon a matter of faith has the unenviable task of acting not merely as an expert on law but also as an expert on religion.

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