Judge the use of veil as a cultural practice
Wearing a headscarf by Muslim women may not be an essential religious practice entitled to constitutional protection, but it remains a cultural practice everywhere across the globe.
Here is another judicial pronouncement on hijab — the professedly Islamic dress code for women. A division bench decision of the Bombay High Court (HC) pronounced on June 26 in this regard made news and continues to raise eyebrows. In May this year, a college in Chembur issued instructions to its students saying, “You shall follow the dress code of the college of formal and decent dress which shall not reveal anyone’s religion. No burkha, no nakab, no hijab, no cap, no badge, no stole, etc”. Simultaneously, girls were directed by these instructions to wear “any Indian/western non-revealing dress”.
A writ petition was filed in the Bombay HC on behalf of nine Muslim girls challenging the legality of the said instructions. The challenge was primarily based on the good old claim that wearing a veil or a headscarf by women and grown-up girls is an essential practice of Islam covered by the protection of the fundamental right to freedom of religious belief and practice under Article 25 of the Constitution. It was further claimed that the impugned instructions were also repugnant to the University Grants Commission (Promotion of Equity in Higher Educational Institutions) Regulations of 2012, the Rashtriya Uchchatar Shiksha Abhiyan (RUSA) of 2013, and the National Education Policy of 2020.
The petitioners’ lawyers thought it fit to include (besides the Chembur college authorities), as respondents, not only the state of Maharashtra and its Higher Education Directorate but also the (central) University Grants Commission and even the government of India. Clearly, there was an attempt to turn a suburban college student’s grievance into a significant religious issue of nationwide importance. In pursuit of the same goal, a media briefing by the aggrieved girls was arranged to publicise the petition and its professedly high religious significance.
The counsel of the petitioners cited a number of Supreme Court (SC) decisions — Bijoe Emmanuel (1986), Delhi St. Stephen’s College (2008) the celebrated Right to Privacy judgment of 2017, and so on — not all of them directly related to the hijab issue. With a view to giving the case a human rights perspective, reference was made also to some decisions of the Human Rights Committee of the International Covenant on Civil and Political Rights (against the French government) and of the Constitutional Court of South Africa in a local dispute.
A similar case had been decided two decades earlier by another bench of the Bombay High Court (Fathema Hussain, 2003). It was affirmingly cited by the bench deciding this case, ignoring the crucial fact that it related to an all-girls school whereas the college involved in this case was a co-educational institution. The new judgment cited some apex court decisions on the larger issue of religious freedom under the Constitution and its statutory restrictions.
Major support for dismissing the petition was, however, sought by the learned judges from the much-publicised Resham case on the issue decided by the Karnataka HC in 2022. It is common knowledge that an appeal against the controversial Karnataka ruling to the Supreme Court was decided differently by two judges of a Division Bench. In view of the split decision, a larger bench pronouncement on the issue had become imperative but has yet to see the light of the day. Ignoring this uncertainty in law, the learned judges in the Bombay case under comment asserted that alluding to the Karnataka case was “necessary”. Acknowledging that it was under appeal, they said “be that as it may” and asserted: “We are in respectful agreement with the view expressed by the Full Bench (of Karnataka High Court) that prescription of a dress code is intended to achieve uniformity amongst students in the school/college so as to maintain discipline and avoid disclosure of one’s religion.”
The Chembur petition was eventually dismissed saying that “the pleadings in the writ petition to support the plea that donning of a hijab or nakab is an essential religious practice are insufficient”. The judges were irked by the publicity of the petition in the media but said that as the petitioners were students, “we say nothing more and let the matter rest at that”. They, however, ignored the same students’ interest in the actual issue in the case. The impugned instructions on hijab issued by the Chembur college at the beginning of a new academic year were sought to be applied also to students who were now in the second or final year of a three-year graduation course. The tenability of their (or their guardians) belief in the religious essentiality of hijab apart, an equitable exception could have been made for them in the interest of their career — more so since they could not have expected lateral entry into any other institution. After all, hijab can in no sense be seen, to quote the words of the impugned college instructions, as an “indecent” or a “revealing” dress.
Religious liberty under Article 25 of the Constitution is surely not guaranteed without conditions — there are several ifs and buts justifiably attached to it — but the right of “any group of citizens” to conserve their language, script and culture under Article 29 is unconditional. Wearing a headscarf by Muslim women may not be an essential religious practice entitled to constitutional protection, but it remains a cultural practice everywhere across the globe. The courts may well consider its protection under Article 29 of the Constitution for the sake of equity, justice and good conscience.
Tahir Mahmood, former chairman, National Minorities Commission, is professor of eminence and chairman, Institute of Advanced Legal Studies, Amity University. The views expressed are personal