Explainer: What the law says on hijab - Hindustan Times
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Explainer: What the law says on hijab

Feb 09, 2022 11:23 AM IST

The contentious subject ensues a legal question of whether the right to wear a hijab is constitutionally protected as an essential religious practice or not. A deep dive:

Karnataka chief minister Basavaraj Bommai on Tuesday ordered the closure of all high schools and colleges in the state for three days as the face-off between pro and anti-hijab students escalated.

This is a clash between the state-mandated restriction on religious attire in educational institutions, and the rights of individuals to freely exercise their religious beliefs(Representational Photo/File Photo) PREMIUM
This is a clash between the state-mandated restriction on religious attire in educational institutions, and the rights of individuals to freely exercise their religious beliefs(Representational Photo/File Photo)

The decision came on the day when the Karnataka High Court commenced hearing a clutch of petitions against the state government’s February 5 order that effectively denied entry to hijab-clad (or saffron scarf sporting) students in educational institutions. The high court urged the students and public at large to maintain peace and tranquillity as it deferred the hearing to Wednesday.

At the core of the dispute is the clash between the state-mandated restriction on religious attire in educational institutions on the ground of maintaining public order and uniformity, and the constitutional rights of individuals to freely exercise their religious beliefs and free speech and expression.

The contentious subject ensues a legal question of whether the right to wear a hijab is constitutionally protected as an essential religious practice or not. The Karnataka government maintains that the hijab is not an essential religious practice in Islam and that, even otherwise, the state is constitutionally empowered to issue prohibitory orders to impose reasonable restriction to the exercise of fundamental rights. Those protesting against the ban maintain that the hijab is an integral part of Islam and the ban is an egregious invasion into their religious freedom.

The debate involves intricate questions of how the Constitution of India protects religious freedom and the State's right to impose restrictions on the exercise of right.

Free speech and religious freedom under the Constitution of India

Article 19 (1)(a) lays down that all citizens shall have the right to freedom of speech and expression. According to Justice Krishna Iyer, “this freedom is essential because the censorial power lies in the people over and against the Government and not in the Government over and against the people.”

But the right under Article 19(1)(a), like every other right under the Constitution, is not absolute. Article 19(2) lays down that the State shall be entitled to impose reasonable restrictions on the exercise of rights under Article 19 by way of framing laws. Article 19(2) provides that prohibitory legislations can be made “be in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”

The Supreme Court in Chintaman Rao Vs State of Madhya Pradesh (1950) laid down the principle that the legislative view of what constitutes reasonable restriction shall not be conclusive and final and that it shall be subject to supervision by the Supreme Court.

In State of Madras Vs G Row (1952), the Supreme Court held that test of reasonableness, whenever prescribed, shall be applied to each individual statute impugned and that no abstract or general principle of reasonableness can be laid down for all prohibitory laws.

The Supreme Court also clarified in Superintendent, Central Prison, Fatehgarh Vs Ram Manohar Lohia (1960), that public order must be distinguished from the other grounds mentioned under Article 19(2) and taken in an exclusive sense to mean public peace, safety and tranquillity as opposed to national upheavals, such as revolution, civil strife and war, affecting the security of the State.

Article 25 of the Constitution maintains that all people are equally entitled to freedom of conscience and the right to profess, practise and propagate religion, subject to public order, morality and health. Apart from the caveats mentioned above, the provision adds that the State shall still be entitled to regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practice.

Similarly, Article 26 entitles every religious denomination to manage its own affairs in matters of religion but this right is also subject to public order, morality and health. Articles 27 to 30 also guarantee freedom to manage religious affairs, monetarily contribute to the promotion of any religion, and to set up and administer educational institutions.

From its early decisions, the Supreme Court has protected the rights under Articles 25 and 26, underscoring how the right to choose religion is a natural right of choice.

In Ratilal Panachand Gandhi Vs The State of Bombay and others (1954), the Supreme Court held that every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for the edification of others.

“With man’s relations to his Maker and the obligations he may think they impose, and the manner in which an expression shall be made by him of his belief on those subjects, no interference can be permitted, provided always the laws of society, designed to secure its peace and prosperity, and the morals of its people, are not interfered with,” emphasised the top court in SP Mittal Vs Union of India, 1983.

In Punjabrao Vs DP Meshram (1965), the Supreme Court interpreted what professing a religion means. “A declaration of one's belief must necessarily mean a declaration in such a way that it would be known to those whom it may interest,” held the court.

The legal position is thus clear that while the State must protect religious faith and belief, if religious practices run counter to public order, morality or health, then they must give way before the good of the people of the State as a whole (Masud Alam Vs Commissioner of Police,1956).

Freedom of religion and essentiality test

In Ratilal P Gandhi Gandhi Vs State of Bombay (1954), the court noted that the State has the power to regulate secular activities associated with religious practice, but not the regulation of “religious practices” as such. The court noted that the activities, which the State seeks to regulate, must be of an “economic, commercial or political character though they are associated with religious practices”. At the same time, the top court acknowledged the State's power to make laws providing for social reform and social welfare even though they might interfere with religious practices.

The questions that subsequently arose were how to define “religion” and which practices could be considered integral to the religion.

The Supreme Court answered this in Commissioner, Hindu Religious Endowments, Madras Vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954), evolving the “essentiality” test to determine definition of core religious practices entitled to protection by freedom of religion under the Constitution. It held that the term “religion” will cover all rituals and practices “integral” to a religion. As an essentiality test, the court prescribed two conditions: First, matters of religion will be distinguished from secular practices and second, a religious community must consider the practice in question an integral part of its religion.

The essentiality test evolved in the Shirur Mutt case has been followed in a series of subsequent judgments by the top court.

In Bijoe Emmanuel Vs State of Kerala (1986), the Supreme Court held that expelling children based on their “conscientiously held religious faith” violated the Constitution of India. Three children were expelled from the school for not singing the national anthem because it was against their religious faith in Jehovah’s Witnesses. The court ruled in favour of the religious beliefs of Jehovah's Witnesses as long as there was no disrespect shown to the national anthem.

In M Ismail Faruqui Vs Union of India and Others, 1995, the apex court held that a mosque is not an essential part of the practice of the religion of Islam and namaz by Muslims can be offered anywhere, even in the open. “The right to worship is not at any and every place, so long as it can be practised effectively, unless the right to worship at a particular place is itself an integral part of that right,” it further said.

In the Tandava Dance case, the Calcutta high court found that the tandava dance was an essential practice of the Ananda Margi faith, only to be overturned by the Supreme Court in 2004. The apex court ruled that tandava dance cannot be construed as an essential religious practise since it was not performed between 1955 (when the faith was founded) and 1965.

In its December 2015 judgment on the appointment of archakas (priests) in Tamil Nadu Hindu temples, the Supreme Court asserted that “constitutional legitimacy must supersede all religious beliefs or practices”. According weightage to essential religious practices, the court said that certain groups can claim their rights to manage affairs of a temple and perform specific pujas, but with a rider that it does not fall foul of constitutional guarantees to others. What comprises essential religious practices, it held, will have to be determined by the court and there is no bar to judicial determination of such issues as and when they arise.

In 2016, the Supreme Court affirmed the discharge of a Muslim airman from the Indian Air Force for keeping a beard as it held that keeping a beard was not an essential part of Islamic practices.

The essentiality test was also followed by the top court in 2017 when it held instant triple talaq to be invalid and unconstitutional. The fact that the majority of Islamic countries have done away with the said practice also reflects that the said practice is not one which will be called an essential religious practice, noted the court. It further underscored that the practice of triple talaq is against both theology and law and just because it is followed by a large number of people, cannot be validated.

Therefore, the body of judgments lays down that while the State shall not interfere with the freedom to practice religion, those practices that are merely religious or sanctioned by the religion, but are not mandated to be compulsorily practiced, are within the sphere of valid legislation.

Courts and hijab

While the issue of hijab has come up before some of the high courts in the past, there is no authoritative judgment on whether hijab can be constitutionally protected as an essential religious practice in Islam.

In Nadha Raheem Vs CBSE (2015), two girls challenged the dress code for the All India Pre-Medical Test (AIPMT), which prescribed wearing “light clothes with half sleeves not having big buttons, brooch/badge, flower, etc. with Salwar/Trouser” and “slippers and not shoes”. The girls said that dress code would prejudice them because their religious custom mandates them to wear a headscarf and also full sleeve dresses. The CBSE defended its decision, pointing out that the dress code was prescribed in the light of the Supreme Court judgment, which scrapped the 2015-16 AIPMT after noting mass copying and cheating in the exam.

The Kerala high court, however, steered clear of the question of whether hijab is an essential religious practice protected under Article 25. It opted to rather harmonise the interests of the parties and affirmed the prescription of dress code while making an arrangement for the petitioners. The court said that the two petitioners can wear hijab to their examination centres if they present themselves for checking by invigilators half an hour before the exam. “It is also desirable that the CBSE issue general instructions to its invigilators to ensure that religions sentiments be not hurt and at the same time discipline be not compromised,” HC said in a four-page order.

A year later, the issue of the dress code prescribed by the CBSE for the same examination came for consideration before the Kerala HC in Amnah Bint Basheer Vs CBSE (2016). A single-judge bench of justice A Muhamed Mustaque cited Quranic injunctions and the Hadiths to hold that “covering the head and wearing a long sleeve dress by women have been treated as an essential part of the Islamic religion” and therefore, such religious attire should be protected under Article 25.

“The right of women to have the choice of dress based on religious injunctions is a fundamental right protected under Article 25(1), when such prescription of dress is an essential part of the religion,” said the high court. However, the HC again proceeded to “harmoniously accommodate the competing interest” as it did not interfere with CBSE’s dress code but directed it to “permit all candidates, who, based on the religious practice, want to wear headscarf and full-sleeved length dress, to appear for the exams” after checking by female invigilators.

However, both these cases were decided by single-judge benches without being taken in appeal to the Supreme Court by any of the parties and the scope of their adjudication remained confined to the prescription of dress code for examinations.

The issue of religious attire came up once again before the Kerala HC in 2018 when two girls sought to attend classes in a Christian school wearing the headscarf as well as full-sleeve shirts, which were against the dress code of the school. Justice Mustaque, who had in an earlier judgment held that covering the head is an essential religious practice for women practicing Islam, drew a distinction between an ordinary educational institution and the one established, managed and administered by minorities in exercise of their fundamental right under Article 30.

The HC, in Fathema Thasneem Vs State of Kerala (2018), ruled that an individual’s interest must give way to dominant interest when the two rights collide. “The dominant interest, in this case, is the management of the institution. If the management is not given a free hand to administer and manage the institution that would denude their fundamental right. A constitutional right is not intended to protect one right by annihilating the rights of others...when there is a priority of interest, individual interest must yield to the larger interest,” it said. The HC added: “It is for the institution to decide whether the petitioners can be permitted to attend the classes with the headscarf and full sleeve shirt. It is purely within the domain of the institution to decide on the same. The court cannot even direct the institution to consider such a request.” The girls challenged this order before a division bench of the Kerala HC but the court simply disposed of the appeal after noting that the girls had left the were not studying in the same school anymore.

In Fathema Hussain Syed Vs Bharat Education Society (2002), the Bombay high court turned down a girl student’s plea for wearing a headscarf in a private school in violation of the dress code. The HC held: “A girl student not wearing the head scarf or head covering while studying in exclusive girls’ section cannot be said to be in any manner acting inconsistent with the aforesaid verse 31 (of Quran) or violating any injunction provided in Holy Quran. It is not an obligatory overt act enjoined by Muslim religion that a girl studying in all girl section must wear head-covering. The essence of Muslim religion or Islam cannot be said to have been interfered with by directing petitioner not to wear head-scarf in the school.”

In M Ajmal Khan Vs Election Commission of India, the Madras HC held that covering of head by scarf is obligatory for Muslim women but added that this right is subject to public order, morality or health and also to the other provisions of Part III of the Constitution (on fundamental rights). The judgment came while rejecting a petition that wanted to restrain the Election Commission of India from publishing photographs of Muslim Gosha women (women in purdah) in the final electoral roll.

The judgments of the high courts have been delivered in specific facts of the cases before them and are far from settling the law on whether hijab can be protected under the Constitution as an essential religious practice. Further, the authority of the State to invoke its constitutional powers to subject such a religious practice to restrictions on the ground of public order is also yet to be tested by a constitutional court.

While a definitive and dependable ruling of a constitutional court on hijab is still awaited, it cannot be doubted that all educational institutions should afford a sense of being welcomed, valued and safe, regardless of faith or belief. The environment should celebrate students’ culture and language while protecting their religious freedom and, furthermore, their ability to reach their educational dreams.

A row over hijab reflects tensions in increasingly pluralist societies struggling with integration, national identity and security. Therefore, it becomes the duty of constitutional courts to rise to the occasion and deliver an authoritative ruling that can guide the executive as well as citizens of the country.

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