Abstract
In light of the recent “Hijab Ban” debate that has erupted throughout India, this article seeks to analyse the many facets of the test of fundamental religious practises guaranteed by the Indian Constitution. When a college in the Udupi district of Karnataka refused to admit Muslim women wearing hijabs, the crisis began. Girls who were refused admittance to their college solely due to the fact that they wore hijabs and they further took their grievances to the Hon’ble High Court of Karnataka, claiming that this action violated their rights under Articles 14, 19, and 25 of the Indian Constitution. The petitioners of the girls said that wearing a headscarf was a vital part of their religious practise, and that any restrictions on their ability to do so violated their article 25 right to freedom of religion and conscience. The Hon’ble High Court of Karnataka issued a ruling dismissing the application for temporary relief.
Keywords: Hijab, Hijab Ban Controversy, Muslim, Essential Religious Practices, Right to Freedom of Religion.
Introduction
Not long ago, Karnataka was the scene of a fresh dispute that, like many other recent examples, involves a contentious debate over a matter of religion. There has been a rise, in recent years, in the number of cases involving assaults on religious beliefs and practises in India, and each new case establishes a new precedent on the same basis. The current uproar in Karnataka arose when the state government there issued an order banning the wearing of headscarves at all colleges below university level. As a result, Muslim women who choose to wear the hijab were barred from enrolling in Government Colleges. The State’s justification for this ban was that the wearing of such garments violates basic principles of fairness and public order. The laws mandating that students in Karnataka all wear the same kind of clothes were enacted as part of the Karnataka Education Act of 1983. This prohibition was initiated at Udupi, Karnataka, and has now expanded to other universities where a similar attitude is being shown against Muslim students who choose to wear the Hijab. Due to this discriminatory government order, a Muslim girl has petitioned the Karnataka High Court. The issue of whether or not Article 25 of the Constitution protects the freedom to wear a headscarf at a place of learning has arisen as a direct result of this incident. In response, proponents of the Hijab said that it is an integral part
of Islam’s religious practise. Since Article 25[1] of the Constitution protects the free exercise of religion, the state government has no authority over this matter. Article 25(1) states, “all individuals are equally entitled to freedom of conscience and the right freely to profess, practise, and propagate religion.” The freedom to wear a Hijab is explicitly established in Article 25(1) and the State is obligated to preserve this right since it is widely regarded as an important religious practise. It was further argued that Article 19(1)[2] of the right to free expression, which includes the freedom to wear a dress, requires a very high standard of public order before a limitation on that right may be enacted (2). The Constitution allows for justifiable limits on Fundamental Rights in the sake of public order, morality, and health, but the wearing of a headscarf does not seem to fall under any of these categories. The Commissioner of Hindu Religious Endowments in Madras v. Sri Lakshmindra Thirtha Swamiar of Shri Shirur Mutt (often referred to as “The Shirur Mutt Case”)[3], from 1954, is often cited as an authority on the necessary religious practise. The decision in this case was as follows:
“No secular government or agency has the right or ability to dictate the rituals and practises that are required of members of a religious sect or group.”
One interpretation of the term “full autonomy” is that members of a given religious group are allowed to publicly proclaim any and all aspects of their faith that they see fit. However, the case of Shayara Bano v. Union of India[4] shows that this is not the case. The Supreme Court has already ruled unequivocally in this instance that an arbitrary action does not qualify as a necessary religious observance.
This is what the Court decided:
“Being subject to Part III, Article 25(1) should be in line with, and not in violation of, the protections guaranteed by Articles 14, 15, and 21. It was argued that talaq-e-biddat should be deemed unlawful since it is incompatible with the rights guaranteed by the aforementioned articles.”
The Supreme Court reached a same conclusion in State of W.B. v. Ashutosh Lahiri[5].
“Although the killing of cows is a common method of religious sacrifice on Bakr Id, Muslims are not limited to this practise. Bovine sacrifice is not a necessary aspect of the religious ritual of Bakr Id. Article 25(1) does not apply to a personal religious observance.”
Therefore, the judicial system does not necessarily provide an unrestrained breadth to the word “fundamental religious activity.” With this in mind, it is important to note that the hijab is an integral element of Islam and is universally recognised as such. On the surface, it would seem that students who choose to wear the hijab to school or college out of respect for their own faith or community are not in any way compromising the reasonable constraints to the Fundamental Rights of the Constitution. Hijab’s disruption of public law and order, especially in educational institutions, has been puzzling throughout this whole controversy. A Committee may mandate a uniform, but it would be unfair to dictate how it must be decorated. Although head covering is a common practise in many faiths, it becomes religiously motivated discrimination when laws are passed that only apply to certain types of head scarves, such as the Hijab.
The present state of events reveals that the conflict has been framed as an argument between Hindus and Muslims. Thinking about this, we need to examine if we would prohibit people of any religion from entering schools while wearing religious garb.
The Essential Religious Practices Doctrine
Article 25(1) of the constitution guarantees not only the right to have and express one’s religious beliefs, but also the freedom to observe those beliefs in accordance with one’s own religious standards and to take particular actions in furtherance of those beliefs. Article 25(1) specifies as religious practises those that are “integral to the faith.” The determination of whether or not a given religious activity is an important aspect of that religion must be made with reference to that religion[6], the specific formula for doing so may vary depending on the circumstances. The Court must decide based on the religious doctrine of the religion in question when deciding whether or not a certain behaviour or belief is an essential component of that faith[7]. It was in the case of The Commissioner of Hindu Religious Endowments in Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt[8] that the ‘essential practises’ test was first articulated “The basic tenets of a religion are the best resource for determining what it is that defines that faith. In order to evaluate whether or not a certain act comprises an important religious function, the teachings and religious scriptures of the relevant religion must be consulted, as stated explicitly by the essential practise test”[9].
Religion[10] does not just provide its adherents with a set of moral precepts to uphold rather, it also contains rituals, observances, ceremonies, and forms of worship that are considered essential to the faith. If a basic aspect of a belief system changes if a particular practise is eliminated, then that practise is an important and crucial part of the religion. Among Hindus, for example, the presenting of food to the idol, the execution of periodic rites, the reading of holy texts, and the offering of oblations to the sacred fire are considered to be fundamental religious activities. The turban (Kara)[11], the dagger (Kirpan)[12], and the recitation of the Holy Guru Granth Sahib are key tenets of the Sikh faith. Similarly, Muslims have designated the summoning of Azan[13] as a mandatory religious observance.
Observing religious rites and rituals is a sign of respect for the beliefs and values that are reflected in them. If a religion is held in high regard, then it follows that its associated rituals and customs are also worthy of honour and should be followed. What constitutes an essential practise must be decided with regard to the doctrine of the religion/faith in order to get protection under Arts 25 and 26. Therefore, it is reasonable to conclude that Article 25 of the Indian Constitution safeguards religious activities that are fundamental to a faith[14].
Research Methodology
Research that relies exclusively on empirical data, which can be independently verified, is said to be empirical or evidence-based. Both quantitative and qualitative approaches may be used to collect empirical evidence. The numerical information was gathered using quantitative research techniques. It is often used for the purpose of quantitatively characterising attitudes, actions, and other response variables. These were laid down neatly and clearly. Some of the most frequent approaches are surveys, polls, and longitudinal research. Non-numerical data sources are mined using qualitative research techniques. The goal is to get the respondent to reveal something about themselves, including their own definitions, ideas, or motivations. These methods tend to be either entirely unstructured or just somewhat so. Studies using this design often have a little sample size. It’s a dynamic approach to teaching or expanding one’s knowledge on a topic via conversation. Common techniques including as interviews, focus groups, and experiments are included here.
The qualitative research technique of “observation” will be used in this study. In order to better understand how an intended audience thinks and acts in relation to a certain issue, qualitative research techniques have been developed. In-depth interviews, focus groups, ethnographic studies, content analyses, and case study research are all examples of common qualitative research approaches. Qualitative approaches provide more descriptive findings and allow for simpler conclusions to be formed.
Literature Review
The debate over the permissibility of religious clothes and symbols in educational and other public institutions is not new. In France, for instance, laïciste advocates of a ban on the hijab and other religious clothing in schools claim that it is aimed at the removal of what they view as an oppressive symbol of male domination. Essentially, they argue that banning the hijab and other such religious clothing liberates wearers from oppressive religious practices, thereby enhancing their autonomy[15]. Autonomy here is broadly understood to mean the ability of individuals to choose how to live their lives without interference by others; that is, people become “authors” of their own lives. It can be contrasted with heteronomy, situations where others determine what an individual does with her life and what goals she pursues. Whether the hijab symbolises oppression is deeply subjective and takes away the ability of the wearer to decide for herself what it means. Laïciste[16] secularists see religious symbols like the hijab signifying the control of religions over people’s lives, as determining the choices they make, and therefore, not autonomous. Such a view of religion, as being fundamentally opposed to autonomy, lies at the heart of the laïciste project of the construction of a secular civic nationalism, free from religion[17], and the strict separation of the state from religion. In contrast, critics of the laïciste model highlight how bans on the hijab detract from autonomy. They argue that hijab bans coercively impose dominant or majoritarian cultural dress codes on believers belonging to minority communities and thereby interfere with their freedom to pursue their religious beliefs and decide what to wear. In other words, the freedom to author one’s life includes the freedom to lead a religious life, and these are sources of meaning and value in many individuals’ lives. Choices to follow religious norms are therefore not necessarily non-autonomous and can even enhance autonomy. Whether the hijab symbolises oppression is deeply subjective and takes away the ability of the wearer to decide for herself what it means. These critics are often wary of the manner in which laïciste secularists paternalistically impose dress codes compatible with the beliefs of dominant groups on those who differ. For instance, the cultural norm that boys should not wear skirts is a limitation on their freedom to wear what they choose to but is imposed as a part of most school uniforms[18]. Strategically too, it is now well established that coercive measures against religious norms only have the effect of further entrenching conservative voices in communities, because communities tend to react to such measures by re-asserting their beleaguered religious identities. Measures such as education, as we discuss below, are far more effective in enhancing the ability of individuals to question community practices.
Methods
The hijab is illuminated in a variety of ways. Some group says that Muslim women or girls must cover everything but her face and hands, and other group says that it is hard to cover everything but the eyes[19]. In some societies where women are not required by law to wear a veil, some Islamic group have mobilized the Hijab to represent a traditional sense of Islamic identity[20]. The true meaning of hijab is covering the private parts and adornments in order to maintain modesty in all respects of life. The traditional and modern culture of the Islamic hijab is not only creating an attitude of modesty but also attract as little attention to oneself as possible. Fashion is a form of self-expression, which is experimenting with looks, and attracting attention to one’s personal style. Despite the seeming contradiction with the spirit of hijab, a growing number of Muslim women are blending the two. This recent interest in Muslim fashion also signals the changing dynamics of the ever-increasing interaction among Eastern and Western cultures. The global Muslim population comprises one of the fastest growing consumer markets in the world, hence representing a major growth opportunity for businesses around the globe, including in the fashion sector. Muslim women should dress in a polished and dignified manner. Hijab has its regional and social characteristics. By analysing the world Muslim women and targeting this market and providing consumers with modest or Islamic outfits could bring significant benefits to the fashion industries. Islamic dressing is a style of its own, and today it is beginning to attract more and more attention, as mainstream trends become increasingly bold and provocative. Growing of Muslim fashion interest also signals the changing dynamics of the ever-increasing interaction among Eastern and Western cultures.
Suggestions
The concept of uniform makes it possible for everyone to look the same. With the use of uniforms, we can ensure that no one is treated differently because of their gender, caste, religion, or any other characteristic. In order to instil in young minds, the notion that everyone is equal, uniforms are introduced in the education system as early as the age we start playschools. Everyone ought to take pride in any part of their identity. I think we should all wear matching uniforms now to demonstrate how close we are. Protesters for all religions should know it is unacceptable to provoke others or to be instigated. The people who are upset about this situation should work together to find a solution that does not include violent protests or religious sloganeering. Politicians, like everyone else, should avoid playing to sectarian constituencies and instead collaborate to find a peaceful resolution. Consideration of the original motivation for school uniforms is essential, in my opinion, whenever finding a workable alternative.
The constitutional morality and human dignity put forth in the Sabarimala case are incompatible with hijab. Many Muslim academics argue that the headscarf is not a necessary part of religious observance. The wearing of the hijab is discouraged at many schools and universities across the world. The major difficulty with allowing the hijab is that it amounts to discrimination within the Muslim community towards non-practicing Muslims and non-believers. Therefore, uniforms have been used in schools to eliminate bias. Therefore, pupils should not feel compelled to wear a hijab to school and should instead wear the required uniform.
The UCC, or Uniform Civil Code, is another idea I support. The goal is to have a uniform set of laws across the nation that everyone of any faith can rely on in family law issues including marriage, divorce, inheritance, adoption, etc. In order to protect its inhabitants, the Indian government is required under Article 44 to work toward implementing a uniform civil code (UCC) throughout the country. It will streamline the many legal codes into a single uniform framework. This means that all citizens, regardless of their religious beliefs, shall be subject to the same civil law. When a UCC is put into effect, all individual laws become null and void. It will eliminate discrimination based on gender in the law.
Conclusion
India is home to a wide variety of religious and ethnic groups, and it is imperative that these differences be honoured. One’s right to freedom of speech includes the right to choose one’s own standards for appropriate attire. However, educational institutions in the state of Karnataka were shut down as a consequence of escalating protest among the groups of students due to the hijab ban debate in India. The debate over the hijab ban caused a breakdown in public order. That “India is a secular State and under Article 25 of the Constitution, all individuals are at liberty to freely profess their faith” was a correct ruling by the Supreme Court in the case Masud Alam v. Commissioner of Police. Article 25 requires that, throughout the exercise of this freedom, there be a marked separation between one’s religious faith and belief and one’s religious activities. To a limited extent, the State safeguards religious practise. To protect the public’s safety, morals, and health, state law may prohibit some religious activities that violate the beliefs of the majority of citizens. While everyone in India has the right to wear whatever they like, allowing children to do so at schools where the dress code has been mandated by the state might lead to disruptive religious displays. Outside of school buildings, however, children are allowed to express themselves via their clothing choices. Article 25 of the Constitution protects the right to freely exercise and spread religion, but the concerns surrounding the protection of this right must be decided on a case-by-case basis, taking into account the centrality of such acts in accordance with the precepts of that religion. It is clear that the practise of wearing the hijab is not central to Islam, and as such, cannot be protected by Article 25(1) in the context of the current debate over whether or not public schools should require their female students to remove their hijabs.
References
- “Hijab – Definition and More from the Free Merriam-Webster Dictionary”. Merriam-webster.com.
- Encyclopedia of Islam and the Muslim World (2003), p. 721, New York
- Ruby, Tabassum F. “Listening to the voices of hijab.” In Women’s Studies International Forum, vol. 29, no. 1, pp. 54-66. Pergamon, 2006.
- Latiff, Zulkifli Abd, and F. N. Alam. “The Roles of Media in Influencing Women Wearing Hijab: An Analysis.” Journal of Image and Graphics 1, no. 1 (2013): 50-54.
- https://en.wikipedia.org/wiki/Hijab_by_country
Submitted by:
Harshita Kaul
Department of Law, Amity University Kolkata
[1] https://www.livelaw.in/top-stories/hijab-ban-govt-college-karnataka-high-court-muslim-girls-students-public-order-191432
[2] https://www.thehindu.com/news/national/karnataka/hijab-controversy-hc-told-that-karnatakas-dress-code-guideline-is-violative-of-fundamental-rightsthere-is-a-box-below/article38396906.ece
[3] 1954 AIR 282
[4] (2017) 9 SCC 1
[5] (1995) 1 SCC 189
[6] John Vallamattom v. Union of India, MANU/SC/0480/2003.
[7] Tilkayat Shri Govindlal Ji v. State of Rajasthan, MANU/SC/0028/1963
[8] MANU/SC/0136/1954
[9] Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, MANU/SC/0072/1962
[10] Seshammal v. State of Tamilnadu, MANU/SC/0631/1972
[11] Surjeet Singh Chhabra v. Union of India, MANU/SC/0660/1997
[12] INDIA CONST. art. 25, Explanation I.
[13] Aash Mohammad v. State of Haryana, MANU/PH/0357/2017
[14] N. Adithyan v. Travancore Devaswom Board, MANU/SC/0862/2002
[15] Sen, Ronojoy (2016): “Secularism and Religious Freedom”, in Sujit Choudhary and others (Eds), Oxford Handbook of the Indian Constitution, Oxford: Oxford University Press, p. 885.
[16] Laborde, Cecile (2006): “Female Autonomy, Education and the Hijab”, Critical Review of International Social and Political Philosophy, Vol. 9, No. 3, pp. 351–77.
[17] Sen, Amartya (1999): Development as Freedom. New York: Alfred A Knopf.
[18] Laborde, Cecile (2006): “Female Autonomy, Education and the Hijab”, Critical Review of International Social and Political Philosophy, Vol. 9, No. 3, pp. 351–77.
[19] Latiff, Zulkifli Abd, and F. N. Alam. “The Roles of Media in Influencing Women Wearing Hijab: An
Analysis.” Journal of Image and Graphics 1, no. 1 (2013): 50-54.
[20] Zwick, Detlev, and Cristian Chelariu. “Mobilizing the Hijab: Islamic identity negotiation in the context
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