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Context

Recently, six students were banned from entering a college in Karnataka’s Udupi district for wearing a hijab (a head covering worn in public by some Muslim women).

The issue throws up legal questions on reading the freedom of religion and whether the right to wear a hijab is constitutionally protected.

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 a negative liberty — which means that the state shall ensure that there is no interference or obstacle to exercise this freedom.
- However, like all fundamental rights, the state can restrict the right for grounds of public order, decency, morality, health and other state interests.
Observations made by the Supreme Court in this matter:
- People have a right under the Constitution to profess, practise and propagate religion (Article 25).
- Every person is the final judge of his/her choice of religion or who their life partner should be. Courts cannot sit in judgment of a person’s choice of religion or life partner.
- Religious faith is a part of the fundamental right to privacy.

Karnataka Education Act, 1983

It stated that students will have to wear dress chosen by the appellate committee of the administrative board of pre-university colleges or college development committee.
The Act seeks to provide for:

Planned development of educational institutions
Inculcation of healthy educational practice
Maintenance and improvement in standards of education
Better organisation discipline and
Control over educational institutions in the State,
With the objective of fostering harmonious development of mental and physical faculties of students.

What is section 133 (2)?

Section 133 (2) of the act mandates that, a uniform style of clothes has to be worn compulsorily. However, private school administration can choose uniform of their choice.
It provides state the power to “give directions to officers or authorities under its control, which are necessary or expedient to carry out purposes of the Act.
It shall be the duty of officer or authority to comply with the directions.

Current status

The court is considering the issue whether the wearing of head scarf comes within fundamental right under Article 25.
One more question which may require consideration is whether the wearing of a head scarf is part of essential religious practice.
Interim order passed by Karnataka HC: The court said that till the matter is pending consideration before the Court, these students and all the stakeholders, shall not insist on wearing religious garments, maybe a head dress or saffron shawl.

Why do some Muslim women wear burkas?

According to Muslim scholars, the Koran calls for both men and women to ‘cover and be modest’.
As with many other religious scriptures, the reference to dress is open to interpretation and has been shaped by centuries of cultures in different nations.
Some scholars argue that it is a religious obligation, particularly the more conservative factions within the Muslim world. There are many variations and interpretations.

What is Hijab?

Hijab is a scarf or clothing worn by Muslim women to cover their hair in order to maintain modesty and privacy from unrelated males either in public or at home.
The concept, however, is not unique to Islam but embraced by other religions too such as Judaism and Christianity.

History of Hijab in Islam

Veiling during Mohammad’s lifetime

Historic pieces of evidence suggest that veiling was not introduced in Arabia by the last Prophet of Islam, but already existed there and was associated with high social status.

Spread of Islam and its traditions

As Islam propagated through the Middle East to parts of Africa and Central Asia, and different societies around the Arabian Sea, it incorporated local veiling customs and influenced others.
However, the veil was neither compulsory nor widely accepted by many generations after Mohammad.
But it gained momentum after male scriptural and legal scholars began using their religious and political authority to regain the dominance they lost in society due to the Prophet’s egalitarian reforms.

Veiling by upper-class Arab women

Soon, the Upper-class Arab women adopted veiling while the poor ones were slow to adopt as it interfered with their work in the fields.
The practice was both adopted as an appropriate expression of Qur’anic ideals regarding modesty and as a silent announcement that the women’s husband was rich enough to keep her idle.

Westernization of Muslim Countries

Westernization started dominating Muslim countries between the 1960s and 1970s. However, in 1979, widespread demonstrations were carried out in Iran after the hijab law was brought in.
The law decreed that the women in the country would have to wear scarves to leave their houses. While the law over hijab was passed in Iran, it was not the same for all Muslim countries.
The resurgence of hijab began in Egypt in the late-twentieth century as a means to reunite and rededicate to the Islamic faith.
The movement was known as Sahwah and the female pioneers of the movement adopted the Islamic dress.
The movement gained impetus and the practice became more widespread among Muslim women. They wore it publicly to announce their religious beliefs as well as reject western influences of dress and culture that were prevalent at the time.

Different kinds of Islamic clothing

Hijab: The hijab covers the hair and chest and is common among Muslim women in South East Asia. Hijab is also a general term referring to the practice of wearing veils of all kinds.
Niqab: It is a veil that covers the face and head, keeping the eye area open.
Burqa: covers the entire body including the whole face, with a mesh window for the woman to see out of.
Khimar: It is a long scarf that covers the head and chest but keeps the face uncovered.
Shayla: A rectangular piece of cloth wrapped around the head and pinned in place.

What is the essential religious practices test?

Shirur Mutt case: In 1954, the Supreme Court held that the term “religion” will cover all rituals and practices “integral” to a religion.
- The test to determine what is integral is termed the “essential religious practices” test.
The test, a judicial determination of religious practises, has often been criticised by legal experts as it pushes the court to delve into theological spaces.
In criticism of the test, scholars agree that it is better for the court to prohibit religious practices for public order rather than determine what is so essential to a religion that it needs to be protected.

Several instances of a court applying the test

In a 2004 ruling, the SC held that the Ananda Marga sect had no fundamental right to perform Tandava dance in public streets, since it did not constitute an essential religious practice of the sect.
While these issues are largely understood to be community-based, there are instances in which the court has applied the test to individual freedoms as well.
For example, in 2016, the SC upheld the discharge of a Muslim airman from the Indian Air Force for keeping a beard.
Armed Force Regulations, 1964, prohibits the growth of hair by Armed Forces personnel, except for “personnel whose religion prohibits the cutting of hair or shaving of face”.
The court essentially held that keeping a beard was not an essential part of Islamic practices.

How have courts ruled so far on the issue of a hijab?

There are two set of rulings of the Kerala High Court, particularly on the right of Muslim women to dress according to the tenets of Islam, throw up conflicting answers.
In 2015, at least two petitions were filed before the Kerala High Court challenging the prescription of dress code for NEET exam which prescribed wearing clothes with certain dress code.
Here the Kerala HC directed the CBSE to put in place additional measures for checking students who“intend to wear a dress according to their religious custom, but contrary to the dress code”.
Amna Bint Basheer v Central Board of Secondary Education (2016): Here, the Kerala HC examined the issue more closely.
- The Court held that the practice of wearing a hijab constitutes an essential religious practice but did not quash the CBSE rule.
- The court once again allowed for the “additional measures” and safeguards put in place in 2015.
Fathima Tasneem v State of Kerala (2018): On the issue of a uniform prescribed by a school, the Kerala HC held that collective rights of an institution would be given primacy over individual rights of the petitioner.

Seven questions pending before Supreme Court

The row over wearing hijab has brought back into focus a case on the “scope and ambit” of religious freedom, which has been pending before a Constitution Bench of nine judges for two long years.

The seven questions pending an answer from the nine-judge Bench are:

What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution;
What is the inter-play between the rights of persons under Article 25 of the Constitution and rights of religious denomination under Article 26;
Whether the rights of a religious denomination are subject to other provisions of Part III of the Constitution apart from public order, morality and health;
What is the scope and extent of the word ‘morality’ under Articles 25 and 26 and whether it is meant to include constitutional morality;
What is the scope and extent of judicial review with regard to a religious practice as referred to in Article 25;
What is the meaning of expression “sections of Hindus” occurring in Article 25 (2) (b);
Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL?”

Way Forward

Pluralism and inclusiveness are characterised by religious freedom. Its purpose is to promote social harmony and diversity.
There is no one uniform code today which is mandated throughout the State. It would be a depressing response from a government that prioritises uniformity over diversity.
Religious fanaticism, whether by the majority or the minority, has only damaged the secular mosaic.
Despite many criticisms of the practice of hijab being oppressive and detrimental to women’s equality, many Muslim women view the way of dress to be a positive thing.
The dress code was seen as a way to avoid harassment and unwanted sexual advances in public and works to desexualize women in the public sphere to allow them to enjoy equal rights of completely legal, economic, and political status.