KARNATAKA’S HIJAB ISSUE – THE LEGAL ANALYSIS

INTRODUCTION

Six students in Karnataka’s Udupi country were recently barred from attending college because they wore an Islamic Hijab (a head covering worn in public by some Muslim women).[1]

THE CONSTITUTION ON FREEDOM OF RELIGION

The Indian constitution guarantees freedom of conscience and the right to freely profess, practise and promote religion under Article 25(1).[2] It is a right that guarantees negative liberty, which means that the state must ensure that this freedom is exercised without interference or hindrance. The state can limit the right, as it can all fundamental rights, for reasons of public order, decency, morality, health and other state interests.

  • Freedom of conscience: An individual’s inner freedom to shape his relationship with God or Creatures in whatever way he wishes.
  • Right to Profess: The right to publicly and freely declare one’s religious views and faith.
  • Right to Practice: Religious worship, rituals, and ceremonies, as well as the public display of beliefs and ideas.
  • Right to Propagation: The act of conveying and disseminating one’s religious beliefs to others.

The Supreme Court declared in Ram Manohar Lohia v. the State of Bihar[3] that in the case of ‘public order,’ the community or the general public must be harmed by a particular activity.

WHAT IS THE “ESSENTIAL RELIGIOUS PRACTISE TEST”?

Commissioner Hindu Religious Endowments, Madras v. Sri Laskhmindra Thirtha Swamiar of Sri Shirur Mutt[4], that the term “religion” included all rites and acts “integral” to the faith. The “essential religious activities” criteria are used to assess what is essential. This indicates that all religious rites, styles of worship, and ceremonies fall under the umbrella of essential religious practice. The Supreme Court has devised a sort of practical test to determine which religious practises are constitutionally protected and which can be ignored in the long run.[5] The Supreme Court ruled in the Shirur Mutt case in 1954 that the term “religion” encompasses all “integral” rituals and practises of faith. The “essential religious practises” criterion is used to assess what is essential.

In Bijoe  Emmanuel v. the State of Kerala[6], Judge O. Chinnappa Reddy wrote that the question is not whether a specific religious belief or practise appeals to our reason or sentiment, but whether the belief is true and conscientiously embraced as part of the profession or practise of religion. ” It makes no difference what we think or how we react. If the belief is held sincerely and conscientiously, it is protected by article 25, but only to the extent specified in the article. Legal jurists have frequently criticised the test, which is used to establish the validity of state action against any religious practice that claims protection despite discriminatory or exclusive practices. The standard has been used by the court in several cases to keep certain practices out.

  • The Supreme Court ruled in Commissioner Of Police & Ors v. Acharya J. Avadhuta And Anr[7] that the Anand Marga sect did not have the right to perform the Tandava dance in public. because it was not a “fundamental” practice of the group
  • In the case of Sri Venkataramanadevaru v. State of Mysore[8], the segregation of some people outside a Hindu temple was considered a religious practice. In this case, the bench examined ancient sacred scripture to determine which religious behaviours were essential and which were not. The court concluded that exclusion was not reasonable and not required, but that the ritual performed by a specific sect and exclusion during the pooja was essential practice.
  • In the Sabarimala case (2018) [9], the majority decided that the prohibition on women between the ages of 10 and 50 from entering the temple was not an essential or integral part of the religious denomination of Lord Ayyappa devotees. In a dissenting opinion, Justice Indu Malhotra stated that they were a different denomination and that the restriction on women of a certain age bracket was an important aspect of their faith and was legally protected.

While these difficulties are often thought to be community-based, the court has extended the test to individual freedoms in some cases. In the Mohammed Zubair Corporal vs Union Of  India  & Ors[10], A three-judge bench of the Supreme Court upheld the expulsion of a Muslim airman from the Indian Air Force for growing a beard. According to the decision, “no material was presented before this court to indicate that the appellant professes a religious, which applies to “personnel whose religion prohibits the cutting of the hairs or shaving off the face of its member.” The court ruled that having a beard was not a necessary part of Islamic practice.

HOW HAVE COURTS RULED SO FAR ON THE ISSUE OF A HIJAB?

While this has been brought before the courts on numerous occasions, two sets of Kerala High Court judgments, particularly on Muslim women’s right to dress according to Islamic precepts, provide inconsistencies in their solutions. There is no binding judgement in this Karnataka hijab case because both of the judgments mentioned herein are from the Kerala High Court and have no binding effect on the state of Karnataka. At least two cases were filed in 2015 in the Kerala High Court contesting the All India Pre-Medical Entrance dress code, which stipulated wearing “light garments with half sleeves without big buttons, brooch/badge, flower, etc. with Salwar/Trouser” and “slippers and not shoes.”[11] The Kerala High Court agreed with the Central Board of School Education (CBSE) that the rule was only in place to ensure that candidates did not use unfair methods like concealing objects within clothes and ordered the CBSE to take additional steps to check students who “intend to wear a dress according to their religious custom, but contrary to the dress code.” In this case, Kerala’s high court took a middle path.

The Kerala High Court looked at the matter further in Amna Bint Basheer v. Central Board of Secondary Education (2016).[12] The Court decided that wearing a headscarf is a vital religious practice, but it did not overturn the CBSE ruling. The court allowed the “additional procedures” and precautions put in place in 2015 to be used once more. Another single judge was appointed. In Fathima Tasneem v. State of Kerala (2018)[13], the case that began this debate, a judge found differently. Their father represented two children, ages 12 and 8, and requested that his daughter wear the hijab and a full-sleeved shirt. The single judge panel of the Kerala high court decided that an institution’s collective rights would take precedence over the petitioner’s rights. As a result, the petitioner will be unable to assert their entitlement over the institution’s broader rights. This ruling has not been appealed and remains unresolved, and the subject is being used for political purposes.

FRENCH SECULARISM V. INDIAN SECULARISM

Some people argue that because the hijab is illegal in France, it should be illegal in India are drawing a flawed analogy. The secularism approach in France separates state and religion. Religious activities are not supported by the state, and individual religious practises are not interfered with. India’s secularism is more inclusive and positive than that of the United States. It is inclusive of all religions and cultures. The state spends and organises the Kumbh Mela, and meat slaughtering is prohibited in Maharashtra during Jain festivals. The Indian government also provides huge funds to run Madrasas subsidises Hajj for Muslims in India. India’s secularism aims to strike a balance between all religions and cultures. So, in India, it is principled distance rather than mutual exclusion. The fact that everyone is allowed to wear whatever they want is one of India’s greatest strengths of liberty and uniqueness.

WAY FORWARD

Pluralism and inclusion are two characteristics of religious liberty. Its goal is to foster social harmony and diversity in rural areas. Whether practised by the majority or the minority, religious fanaticism has only helped to undermine the secular structure of the country. When feasible, it’s always a good idea to find a balance. In the absence of a legislated uniform code, a court may readily consider whether wearing a religiously prescribed head covering in addition to the uniform breaches any legal principle. All kinds of safety precautions must be made to ensure that the state remains peaceful and orderly, allowing students to attend classes without interruption.

Instead of praising knowledge, we’re witnessing societal toxicity, with students becoming participants in collective animosity. We should make well-informed decisions, follow the rules of the institution where we are studying, and keep the peace. The only way out is to take the middle path and balance both rights. In the absence of a legislated uniform code, a court may readily consider whether wearing a religiously prescribed head covering in addition to the uniform breaches any legal principle. Applying the constitutional morality and legitimacy test to the subject at hand will be a more logical approach. Applying the concepts of equality, dignity, and civil rights to a specific practice rather than a theological inquiry may be a preferable way to determine its constitutionality.

Author(s) Name: Anudha Singhai (Symbiosis Law School, Noida)

References:

[1]Bhattacharjee, S., 2022. Karnataka hijab row: A look at nations that have banned veils. [online] cnbctv18.com. Available at: <https://www.cnbctv18.com/india/karnataka-hijab-row-a-look-at-nations-that-have-banned-veils-12424762.htm> [Accessed 22 February 2022].

[2] India const. art. 21, cl. 1 (a).

[3]Ram Manohar Lohia v. the State of Bihar (1966) AIR 740, 1966 SCR (1) 709 (India).

[4]Commissioner Hindu Religious Endowments, Madras v. Sri Laskhmindra Thirtha Swamiar of Sri Shirur Mutt (1954) AIR 282, 1954 SCR 1005 (India)

[5]Vishwanath, A., 2022. Explained: Freedom of religion and attire. [online] The Indian Express. Available at: <https://indianexpress.com/article/explained/explained-freedom-of-religion-and-attire-7757652/lite/> [Accessed 22 February 2022].

[6]Bijoe Emmanuel v. the State of Kerala(1987) AIR 748 (India).

[7] Commissioner of Police &Ors v. Acharya j. Ayadhuta and and Anr (1984) SC 51 (India).

[8]Sri venkataramana devaru v. State of Mysore (1958) AIR 255, 1958 SCR 895 (India).

[9] Indian young lawyers association and Ors. V. the state of Kerala (2019) 11 SCC 1, 2018 (8) SCJ 609

[10]Indiankanoon.org. 2022. Mohammed Zubair Corporal vs Union Of India & Ors on 15 December, 2016. [online] Available at: <https://indiankanoon.org/doc/109736614/> [Accessed 1 March 2022].

[11] Vishwanath, A., 2022. Explained: Freedom of religion and attire. [online] The Indian Express. Available at: <https://indianexpress.com/article/explained/explained-freedom-of-religion-and-attire-7757652/> [Accessed 1 March 2022].

[12]Amna Bint Basheer v Central Board of Secondary Education (2016) [Civil Appeal No. 8644 of 2009] (India).

[13]Indiankanoon.org. 2022. Fathima A.S vs The State Of Kerala on 16 November, 2018. [online] Available at: <https://indiankanoon.org/doc/139302968/> [Accessed 1 March 2022].

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