Tanya Arora
INDIA is country of many religions, with its plurality and diversity being essential to its fundamental constitutional mandate. In the new India being insidiously re-fashioned, however, displays of difference, or minority cultures has led to manufactured public outrage. And, while the Indian government uses its flagship “Beti Bachao Beti Padhao” programme to ‘promote the education of daughters’ armed affiliate mobs have been seen to terrorise any girl, or woman who is “different.”
The Indian Supreme Court’s recent split-judgment on the Hijab Ban case has once again brought to light a problematic aspect of the ‘Hijab Row’, especially in the manner in which the issue was presented and argued –by petitioner organisations themselves –before the Karnataka High Court. Earlier this year, while during the hearing of the matter before the Karnataka High Court, one of the arguments that was majorly relied on by the petitioners was that wearing the hijab is an “essential religious practice” for Muslim women nationwide, and as such, it ought to be protected under Article 25 of the Indian Constitution. This argument takes the issue down a precarious slope. Tragically, the high court, a constitutional forum, instead of elevating the issue beyond and above this argument, also dealt and discarded the rights of the young girls on that count alone.
Determining if an activity is or was “essentially religious” is where the phrase “essential religious practice” originated. If accepted as such, it would be given Article 25(1) protection, which grants every individual the freedom of conscience and right to practice, profess and propagate any religion. However, over time, the Supreme Court’s interpretations have metamorphosed into one where the Court considers (or can consider) whether any activity is actually “essential to a religion.”
From all the arguments that were presented before the Karnataka High Court in this case, it is unfortunate to see that the focus was majorly on making the issue or controversy about religion, while the issue of the right or access of every girl’s right to education was majorly ignored. The entire issue snowballed after some Muslim girls were being denied their right to education.
In December 2021, six Hijab-clad Muslim students belonging to Udupi’s Government Pre-University College for Girls were barred from attending classes. The institute’s purported reason: “no religious activity will be allowed on campus.” The girls were marked absent for at least three weeks before they protested the ban on 31 December, saying “though it is our constitutional right, they are still not allowing us to go in the class because we are wearing hijab.” A government resolution on the issue was quoted as the reason behind this action.
The students subsequently filed a writ petition in the Karnataka High Court, and also approached the National Human Rights Commission (NHRC). Meanwhile, triggered by the increasingly shrill posturing around the issue, some Hindu students (clearly supported by politically supremacist outfits) donned saffron scarves as a symbol of their opposition to the hijab, while the number of institutions that prohibited more and more Muslim girls continued to increase across Karnataka. On January 4, around 50 students of a state-run degree college in Chikmagalur District wore saffron-coloured scarves and raised slogans outside their educational institution. This led to both scarves and hijabs being banned from classrooms in the institute.
What is pertinent to stress however what is at stake is not just the issue of religion or culture. While the ban was applied to both saffron shawls and the hijab, it was the Muslim girls who had to sit in separate classes till they removed their hijab, not give their final exams, stand outside the gate of the educational institutes to protest for their rights or opt for getting transfer certificates. It was their education that suffered, along with their future opportunities. But this issue, of the right of every girl/woman to education, was on the back burner while the High Court decided whether wearing hijabs constitutes an essential religious practice and if the court can at all, intervene in such matters.
The Karnataka High Court held that the hijab (head scarf) worn by Muslim women does not constitute a necessary component of Islamic religious practices and is, therefore, not protected by the freedom of religion provided by Article 25 of the Indian Constitution. The Court further determined that the need of school uniforms did not infringe on either the right to privacy protected by Article 21 of the Constitution or the freedom of speech and expression guaranteed by Article 19 (1)(a) of the Constitution.
Additionally, the Court ruled that the ban on wearing a hijab in educational settings is just a fair limitation (of dress in a secular institution). The students cannot have a constitutional objection to this since it is legal. Thus, it affirmed the validity of the order issued by the Karnataka Government on February 5. In accordance with the Karnataka Education Act of 1983, the Karnataka government required the wearing of uniforms in schools and pre-university colleges in this order.
The Court also ruled that individual rights cannot be asserted in “qualified public places” like schools at the expense of overall decorum and discipline. This phrase is used a total of six times in the judgement. The court also notes that just as a detainee or a criminal does not always have absolute fundamental rights, a school is a qualified public space where the exercise of fundamental rights is regulated. The court makes this argument despite the fact that this word is not defined in the ruling. The court claims that in certain areas, “substantive rights transform into derivative rights.” On many levels, this proposition is itself a risky venture. A courtroom, a jail, a war room, and a defense camp are further instances of qualifying locations mentioned in the ruling.
This understanding goes against the essence of our democracy as 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). Fundamental rights were not intended to be protected by the Constitution in such a fragile fashion that they might be eliminated in the sake of “general discipline and decorum.”
The High Court Judgment further 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.” (Part IX, clause iii)
As this can be claimed about the majority of religious behaviour, the interpretation mentioned above would severely restrict the extent of religious freedom for all religions. The standard of evidence placed on the community in issue to demonstrate that donning the hijab is an essential practice has been set excessively high by the ruling, which has a severely constrained understanding of the freedom of conscience. The Court has overlooked the implications for Muslim women’s personal freedom in pursuing their education and leading the lives they choose while issuing its ruling and weighing the arguments. The ability to choose what and how to dress is something that needs to be granted to every women, religion no bar. Courts shouldn’t be used as a forum for religious changes in a democracy like India; “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,” the judges had opined.
Thus, the approach taken by the Karnataka High Court in deciding this case was erroneous as courts even attempting adjudication over ERP has been criticised by academicians and scholar for a long time. Additionally, it has been contended that the essentiality/integrity concept tends to steer the Court into a realm outside of its purview and gives judges the authority to make decisions that are solely religious in nature. As a result, over the years, courts have taken differing positions on this issue. For instance, in Gandhi v. State of Bombay (1954), the Supreme Court stated that no outside authority has the authority to declare that these are the fundamental components of religion and that the secular authority of the state is not free to restrict or forbid them in any way. The Courts have occasionally used religious scriptures to assess essentiality, while in other instances they have relied on adherents’ actual behavior.
Some landmark judgments on religion and ERP:
- In 2018, in the case of Indian Young Lawyers Association and Others Vs. The State of Kerala and Others, the Supreme Court gave permission to menstruating women to enter the Sabarimala Temple. In this case, in deciding the question as to whether a given religious practice is an integral part of the religion or not, the court observed that the test always would be whether it is regarded as such by the community following the religion or not.
- In 2016, in the case of Mohammed Zubair Corporal Vs Union Of India & Ors,the Muslim airman’s expulsion from the Indian Air Force for sporting a beard was affirmed by the Supreme Court. The Court effectively concluded that having a beard was not a requirement for practicing Islam.
- In 2004, the Supreme Court held that the Ananda Marga sect had no inherent right to perform the Tandava dance in public because it was not a basic aspect of their religion.
- The Supreme Court affirmed the Tamil Nadu Hindu Religious and Charitable Endowments (Amendment) Act, 1970 in matter of Seshammal v. State of Tamil Nadu (1972). According to the Court, the Act’s main goal was to govern managerial and administrative practices. It was not intended to control or alter the customs observed in temples regarding rites and ceremonies.
- In Sardar Syedna Taher Saiffuddin Saheb v State of Bombay (1962), he Supreme Court’s five-judge panel confirmed the Head Priest of the Dawoodi Bohra Community’s claim to and authority over excommunication. It was also noted that information on what constitutes an important activity may be found in the religious books and tenets. The Legislature was not allowed, according to the Court, to eradicate a religion’s existence or identity.
In furtherance to this, the High Court judgment making this issue just about religion was not fair. They failed to take into account the fact that if the hijab was prohibited, it would severely restrict the Muslim women in question by infringing their fundamental rights and causing an irreparable loss to their educational opportunities. Even before this, when the interim order was enacted prohibiting the wearing of the hijab or saffron shawls as a means of displaying one’s religion, the trouble this would cause Muslim women who wear the hijab was disregarded.
Supreme Court on Hijab in the Classroom
The ruling of the Karnataka Government was affirmed by the High Court. The Supreme Court subsequently heard this matter. On October 13, 2022, the two judge bench delivered a split judgment. In view of the “divergence in opinion”, the apex court directed the matter to be placed before the Chief Justice of India for appropriate directions.
The bench of Justice Hemant Gupta and Justice Sudhanshu Dhulia was hearing the case. In dismissing the appeals, Justice Hemant Gupta stated that religious convictions cannot be brought to a secular institution run with state funds. Fundamental liberties are not untouchable and are open to legitimate limitations. He understood the goal of the Karnataka state government’s circular prohibiting headscarves to be upholding discipline and uniformity. He contended that uniformity fosters an atmosphere of equality where brotherly principles may be ingrained. He further emphasised on the value and absorbing qualities of uniforms. Additionally, he observed that students are free to carry their religious symbols outside of schools and that wearing a hijab is only prohibited during school hours. However, he added that at colleges, students should appear to be of a same mindset, i.e. look, feel and think alike.
On the other hand, Justice Sudhanshu Dhulia overturned the challenged High Court decision, declaring that demanding Muslim girls’ to remove their hijabs at the school gates constituted a violation of their privacy, a harm against their dignity, and ultimately a denial of a secular education. He emphasised that wearing a hijab does not violate public order, morality, health, or decency, some of the justifications for limiting basic rights. He urged that society make fair accommodations in light of India’s numerous traditions. He believed that respect for others’ dignity and a commitment to brotherhood call for tolerance and a willingness to make fair accommodations for their personal views. Contrary to Justice Hemant Gupta, he believed that the pre-university institution was the ideal setting for teaching students the constitutional ideals of tolerance and accommodation while also exposing them to the diversity that exists in the nation.
In his ruling, Justice Dhulia focused on the problem of Muslim females being denied access to school. He stressed the violation of Muslim women’s fundamental rights as well as the need of the court to advance diversity rather than uniformity in our nation. While giving his decision, Justice Sudhanshu Dhulia cited the decision given in the Bijoy Emanuel case, which had held that courts only need to test whether a practice is prevalent, was established and a bona fide one, he stated that wearing the hijab meets all three criteria.
Brief about the Bijoe Emanuel Case:
Facts: Following an allegation that they had refused to sing the national anthem, Bijoe Emmanuel, 15, a student in Class 10, and his sisters Bine and Bindu, 14, and 10, who were students of Classes 9 and 5, were suspended from school. The three kids belonged to the millenarian restorationist Christian sect known as Jehovah’s Witnesses, which has doctrines that are different from those of traditional Christianity. The dispute began in 1985, when the three were students at Kidangoor’s NSS High School in Kerala’s Kottayam district. The school, which was administered by the Hindu Nair Service Society, at the time had 11 Jehovah’s Witnesses as students. Five years had passed since Bijoe was first enrolled at the institution.
The family claimed that when others sung the national anthem, the kids stood as a sign of respect. That was not an issue for the administration of the school or other parents. Bijoe’s father had said that “some vested interests from outside the school dredged up the subject.” Politicians were interested in the situation after reading about it in a local newspaper. The UDF administration launched an investigation by a single-member committee after Congress (S) politician VC Kabeer brought up the matter in the Kerala Assembly.
The panel came to the conclusion that the kids were neither impolite nor had the school made any complaints about them. Nonetheless, the district educational officer stressed that, in order for the Emmanuels to continue attending school, they would have to follow the regulations. He required the kids to confirm in writing that they would join the rest of the class in singing the national song. The family, however, did not find this to be acceptable. The three kids and nine other members of the Jehovah’s Witnesses group were expelled from school on July 25, 1985, purportedly as a result of government pressure.
The Court: Emmanuel and his wife Lillikutty moved Kerala high court, where their plea was rejected by a single judge. They attempted a re-appeal but that too was turned down, this time by a division bench. Emmanuel, who is not one to give up easily, filed a petition with the Supreme Court on behalf of his three young appellants, Bijoe, Binu, and Bindu.
The landmark Emmanuel v. State of Kerala, 1986 verdict, which is now known as the highest court’s decision, was delivered on August 11, 1986, and it sided with the students. Three children were granted protection as the Supreme Court’s bench of Justices O Chinnappa Reddy and M M Dutt ruled that making the kids sing “Jana Gana Mana” was against their basic religious freedom.
“We may at once say that there is no provisions of law which obliges anyone to sing the National Anthem nor do we think that it is disrespectful to the National Anthem if a person who stands up respectfully when the National Anthem is sung does not join the singing,” the SC court said in Para 2 of the judgment.
“Proper respect is shown to the National Anthem by standing up when the National Anthem is sung. It will not be right to say that disrespect is shown by not joining in the singing….” the SC court said in Para 4 of the judgment.
Justice Chinnappa Reddy noted in paragraph 2 of his judgment that that the High Court “misdirected itself” by considering the national anthem in minute detail and concluding that “there was no word or thought… which could offend anyone’s religious susceptibilities”. “But that is not the question at all. The objection of the petitioners is not to the language or the sentiments of the National Anthem: they do not sing the National Anthem wherever, ‘Jana Gana Mana’ in India, ‘God save the Queen’ in Britain, the Star-spangled Banner in the United States and so on…,” the order said.
The verdict is considered a landmark judgment on freedom of speech in India.
Justice Sudhanshu Dhulia
In a 73-page judgment, Justice Dhulia noted in para 79 of his judgment, “fraternity, which is our constitutional value, would therefore require us to be tolerant, and as some of the counsel would argue to be, reasonably accommodating, towards the belief and religious practices of others. We should remember the appeal made by Justice O. Chinnappa Reddy in Bijoe Emmanuel — our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practices tolerance; let us not dilute it.”
Distancing the hijab ban case from the essential religious practice issue, Justice Dhulia acknowledges wearing hijab as the individual’s right to choose. He states it unfortunate that the education of Muslim women had to suffer.
“A girl child for whom it is still not easy to reach her school gate. This case here, therefore, has also to be seen in the perspective of the challenges already faced by a girl child in reaching her school. The question this court would put before itself is also whether we are making the life of a girl child any better by denying her education merely because she wears a hijab!” he noted in para 65 and 66 of his judgment.
He continued by saying that under the constitution, donning a hijab should only be a matter of personal preference. It may or may not be a requirement for practicing one’s religion, but it is still a matter of conscience, conviction, and expression. As long as a girl chooses to wear a hijab, even in a classroom, she cannot be prohibited from doing so, according to Justice Dhulia. In certain circumstances, wearing a hijab is the only way a girl’s orthodox family will allow her to attend school.
There is a sharp contrast between the divergent opinions of this Bench of the Supreme Court. The actual problem here is not whether or not the hijab is worn; rather, it is the intrusive State’s denial of a person’s right to choose and the impact this has on a minority population in India. Today, a state that is headed for elections and is being purposefully divided along religious lines is using the uniform as a shield to demonstrate a fake uniformity and win political brownie points. Muslim women are denied the power to make their own decisions as lawmakers sit in their high seats, making pronouncements, and deciding whether or not the hijab is an essential Islamic practice. Access to education, dignity and freedom of expression are all basic rights, granted to us by our forefathers. But are they limited to the majority only?
It is now obvious that the topic has proven to be extremely polarising at all societal levels, and the case symbolizes the dilemma facing Indian culture and the rest of the globe over the actual nature of secularism. Does this imply that the government has a wholly neutral attitude toward all faiths, or does it imply that it recognises and tries to meet the needs, anxieties, and ambitions of individuals who lack the support of a large majority?
While the opinions forwarded by Justice Dhulia are refreshing and welcome, it is pertinent to note that while another bench is being constituted by the Supreme Court, the ban on the hijab still exists. Muslim girls are still not able to continue with their education, even though one year has passed. We might or might not agree with the practice of wearing hijab, but it will be wrong for us to delude ourselves that we are doing the Muslim women a big favor and bringing progress in this nation by imposing a ban on hijab. Forcefully taking away their choice, identity and self-expression might have the opposite effect.
c. Sabrang