List of Contents
- What is the background of the issue?
- What is the Karnataka High Court Judgment on Hijab issue?
- How is religious freedom protected under the Constitution?
- What is the Supreme Court’s view on Religious Freedom?
- Where has the Supreme Court applied the essential religious practices test?
- What are some criticisms of the essential religious practices test?
- What are the earlier Judgments on Hijab?
- What are the concerns associated with Karnataka High Court Judgment on Hijab?
- What lies ahead?
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A three-judge Bench of the High Court of Karnataka has pronounced its verdict on the petitions related to the row over wearing of hijab by female students in educational institutions. The bench ruled that wearing of hijab (head scarf) by Muslim women does not form a part of essential religious practices in the Islamic faith. The verdict has received a mixed response with some legal scholars pointing out the issues with the ‘essential practices’ test. Appeal has already been filed in the Supreme Court.
What is the background of the issue?
The Karnataka government had passed an order prescribing the wearing of uniforms in schools and pre-university colleges under provisions of the Karnataka Education Act, 1983. The row had erupted after some Muslim girl students of the Government PU College for Girls, Udupi, said that they were denied entry to the college for wearing hijab. However, the college authorities claimed that they had prescribed a uniform and no religious attire was permissible to be worn along with the uniform.
The aggrieved Muslim girl students studying in two government pre-university colleges in Udupi district approached Karnataka High Court (HC) against the prescription of dress code and denial of right to wear hijab. The petitioners argued that wearing of hijab is a part of essential religious practice as per Islamic faith and college authorities cannot prevent them from attending classes wearing hijab.
The bench, in its interim order passed on February 10, had restrained all students regardless of their faith from wearing saffron shawls, scarfs, hijab, religious flags or the like in classrooms until further orders.
What is the Karnataka High Court Judgment on Hijab issue?
The High Court ruled that wearing of hijab (head scarf) by Muslim women does not form a part of essential religious practices in Islamic faith and it is not protected under the right to freedom of religion guaranteed under Article 25 of the Constitution of India.
The Court ruled that the prescription of school uniforms does not violate either the right to freedom of speech and expression under Article 19(1) (a) or the right to privacy under Article 21 of the Constitution.
The Court held that the restriction against wearing of hijab in educational institutions is only a reasonable restriction. This is constitutionally permissible and the students cannot object to it. Thus it upheld the legality of the Karnataka Government’s February 5 order.
The Court held that in ‘qualified public places‘ like schools; there cannot be the assertion of individual rights to the general detriment of general discipline and decorum.
Rules made at such places can’t be seen as diluting rights under Article 14 (equality before law), Article 15 (no discrimination) and Article 19 (1) (freedom of expression).
How is religious freedom protected under the Constitution?
Article 25(1) of the Constitution guarantees the freedom of conscience and the right freely to profess, practise and propagate religion. It is a right that guarantees negative liberty — which means that the State shall ensure that there is no interference or obstacle to exercising this freedom.
However, like all fundamental rights, the right to religions freedom is not absolute in nature. The State can restrict it on grounds of public order, morality, health and other fundamental rights.
What is the Supreme Court’s view on Religious Freedom?
The Supreme Court has evolved a practical test to determine what religious practices can be constitutionally protected and what can be ignored.
In the Shirur Mutt Case (1954), the ‘doctrine of essentiality’ was invented by the Supreme Court. The Court held that the term ‘religion’ will cover all rituals and practices ‘integral‘ to a religion, and took upon itself the responsibility of determining the essential and non-essential practices of a religion. The essential religious practice doctrine protects only such religious practices which were essential and integral to the religion.
Where has the Supreme Court applied the essential religious practices test?
In 2004, the Supreme Court held that the Ananda Marga sect had no fundamental right to perform the Tandava dance in public streets since it did not constitute an essential religious practice of the sect.
In 2016, the Supreme Court upheld the discharge of a Muslim airman from the Indian Air Force for keeping a beard. The Court essentially held that keeping a beard was not an essential part of Islamic practices.
In Seshammal v State of Tamil Nadu (1972) the Supreme Court upheld the Tamil Nadu Hindu Religious and Charitable Endowments (Amendment) Act, 1970. The Court ruled that the purpose of the Act was to regulate secular functions like management and administration. It did not aim to regulate or change the rituals and ceremonies followed in the temples.
In Sardar Syedna Taher Saiffuddin Saheb v State of Bombay (1962), the 5 Judge Bench of the Supreme Court upheld the right and power of excommunication bestowed upon the Head Priest of the Dawoodi Bohra Community. It was further observed that what constitutes an essential practice is to be gathered from the texts and tenets of the religion. The Court said the Legislature was not permitted to reform a religion out of existence or identity.
What are some criticisms of the essential religious practices test?
Scholars of Constitutional law like Prof. Faizan Mustafa (Vice-Chancellor of NALSAR University of Law, Hyderabad) have argued that the essentiality/integrality doctrine has tended to lead the Court into an area that is beyond its competence, and given judges the power to decide purely religious questions. As a result, over the years, Courts have been inconsistent on this question e.g., in Gandhi v. State of Bombay (1954), the Supreme Court had said that no outside authority has any right to say that these are the essential parts of religion and it is not open to the secular authority of the state to restrict or prohibit them in any manner they like.
Prof. Mustafa points out that in some cases the Courts have relied on religious texts to determine essentiality, while in others the judgments were based on the empirical behaviour of followers. In yet some other Judgments, the Court based their decision on whether the practice existed at the time the religion originated, overlooking the fact that religious practices evolve over time.
What are the earlier Judgments on Hijab?
Amna Bint Basheer v Central Board of Secondary Education (2016): The Kerala HC held that the practice of wearing a hijab constitutes an essential religious practise but did not quash the dress code prescribed by CBSE. It rather provided additional safeguards, such as examining students wearing full sleeves when needed.
Fathima Tasneem v State of Kerala (2018): The Kerala HC held that collective rights of an institution would be given primacy over the individual rights of the petitioner. The case involved two girls who wanted to wear the headscarf. The school refused to allow the headscarf. However, the Court dismissed the appeal as students were no longer in the rolls of the respondent-School.
What are the concerns associated with Karnataka High Court Judgment on Hijab?
Narrow View: The Judgment observes ‘…the Holy Quran does not mandate wearing of hijab or headgear for Muslim women…because of absence of prescription of penalty or penance for not wearing hijab….It is not that if the alleged practice of wearing hijab is not adhered to, those not wearing hijab become sinners, Islam loses its glory and it ceases to be a religion‘. Prof. Mustafa argues this interpretation would seriously curtail the scope of religious freedom of all religions because this can be said about most religious practices. According to him the judgment has taken an extremely narrow view of the freedom of conscience and has demanded too heavy a burden of proof.
Impact on Personal Freedom: Prof. Mihira Sood of National Law University, Delhi has opined that women should have the right to choose the attire they want to wear. She argues that Courts are not the platform for religious reforms; ‘Individual fundamental liberties provide a far more sound and stable foundation for reform than secular Courts ruling on religious doctrine, which they are ill-equipped to do‘.
What lies ahead?
Petitions have been filed in the Supreme Court against the High Court Judgment. The Supreme Court has already referred the review of the Sabarimala Judgment (2018) to a larger bench and is considering the correctness of the doctrine of essentiality and whether Courts should assume the role of clergy. The Supreme Court Judgment on the issue will settle the debate.
On the administrative front, the Government needs to enhance cooperation with parents, various organizations and communities to prioritize the education of students above everything else.
Ms. Farida Khanam, an eminent Islamic scholar and Chairperson of the Centre for Peace and Spirituality, quotes several instances from the life of Prophet of Islam and argues that hijab had never been prescribed in the Holy Quran. She exhorts that Muslims must accept the Karnataka HC judgment wholeheartedly and take part in all educational facilities.
Constitution guarantees freedom of religion as a fundamental right but it is not a sacrosanct right and can be curtailed on some grounds. The recent judgment is a testimony to this and should be followed in letter and spirit until the final Judgment by the Supreme Court.