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Context

• The Two-judge Constitution Bench of the Supreme Court in the popular “Hijab case” has delivered a split verdict. The matter will be now heard by a larger Constitution Bench headed by the Chief Justice of India.
• Earlier in march 2022, stating that wearing the hijab is not an essential part of Islam and freedom of religion under Article 25 of the Constitution is subject to reasonable restrictions, a full bench of the Karnataka High Court had dismissed a batch of petitions filed by Muslim girls studying in pre-university colleges in Udupi seeking the right to wear hijabs in classrooms.
• This decision of the Karnataka HC was challenged in the Supreme court which now received this verdict.
• Thus, in this edition of the burning issue we will be analyzing the ‘Hijab Issue’; the verdicts of different courts, and finally a way forward.

What is a Hijab?

• Hijab is a scarf or clothing worn by Muslim women to cover their hair 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. 

Different kinds of veiled 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 Hijab Issue?

• The origin of the issue: The controversy erupted nationally on January 1, 2022, when six girl students of the Mahatma Gandhi Memorial College in Udupi gave a press conference to protest the college authorities’ denial of permission to them to keep wearing their hijabs after they entered their classrooms.
• Student’s response: The students portrayed the ban as an attack on their religious rights as a minority. Several educational institutions protested against the Karnataka government’s compulsory uniform order and denied entry to Muslim girls wearing the hijab. This was challenged in the Karnataka High Court (HC).

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, practice 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 state can restrict the right for grounds of public order, decency, morality, health and other state interests.

What was the Karnataka High Court decision?

• Upholding the ban: On March 15th, 2022, a three-Judge Bench of the Karnataka High Court comprising Chief Justice Ritu Raj Awasthi and Justices Krishna Dixit and J.M. Khazi upheld the ban on the hijab in the State’s educational institutions.
• Distinction needed: In the Judgment, the Court created a distinction between ‘Freedom of Conscience’ and ‘Religious Expression’, claiming that while conscience is an internal belief, religious expression is an outward expression of this belief. Wearing the hijab is a form of religious expression, and must be subject to the Essential Religious Practices test.
• Not an essential practice: The Court held that wearing the hijab is not an Essential Religious Practice. It did not merit protection under Article 25 of the Constitution of India, 1950.
• Should be within fundamental rights ambit: Further, the Court stated that even if it were to accept that wearing the hijab is an Essential Religious Practice, the practice would receive constitutional protection only if it did not conflict with constitutional values such as equality and dignity. The requirement that a practice must be an Essential Religious Practice for constitutional protection is a threshold requirement. 
• Do not violate the right to freedom: The Court held that the ban on the hijab in State educational institutions did not violate their Right to Freedom of Speech and Expression under Article 19(1) of the constitution.

What Supreme Court’s spilt verdict says?

(A) Arguments of SC Justice Hemant Gupta:

• Justice Hemant Gupta upheld Karnataka’s prohibitive government order of February 5, saying “apparent symbols of religious belief cannot be worn to secular schools maintained from State funds”.
• Justice Gupta held that adherence to the uniform was a reasonable restriction to free expression. The discipline reinforced equality. The State had never forced students out of State schools by restricting hijab. The decision to stay out was a “voluntary act” of the student.
• Justice Gupta held that discipline was one of the attributes students learn in schools; that defiance of rules would be an antithesis of discipline. The students had a right to education under Article 21 but not of insisting on wearing something additional to their uniform, as part of their religion, in a secular school.
• He also said ‘secularity’ meant uniformity, manifested by parity among students in terms of uniformity. Justice Gupta pointed out that the uniform is an equalizer of inequalities. If students of one faith insisted on a particular dress, others would follow suit. Permitting one religion to wear religious symbols would be an antithesis of secularism.
• Justice Gupta, agreed with the government that the “ethic of fraternity is best served by complete erasure of all differences”, especially religious. Wearing hijabs in secular schools “would stand out and overtly appear differently. None of the fundamental rights were absolute and all of them should be read together as a whole.

(B) Arguments of SC Justice Dhulia

• In his divergent opinion, Justice Sudhanshu Dhulia said secularity meant tolerance to “diversity”.
• Justice Dhulia stated that the point of whether the hijab was an essential religious practice under Islam or not was essential for the determination of the dispute. According to him, “If the belief is sincere, and it harms no one else, there can be no justifiable reasons for banning the hijab in a classroom.” The young girl petitioners had asserted their individual and not community right.
• Courts are not the forums to solve theological questions as there will always be more than one religious view on a particular religious matter
• Wearing or not wearing a hijab to school was “ultimately a matter of choice”. For girls from conservative families, “her hijab is her ticket to education”.
• Justice Dhulia disagreed with the idea of forced homogeneity. He said schools and pre-university colleges were the “perfect institutions” for children to learn the rich diversity of India and imbibe values of tolerance and accommodation.
• He also referred to the Puttaswamy judgment and in particular Justice D.Y. Chandrachud’s observations on the link between privacy and human dignity.

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 practices, has often been criticized by legal experts as it pushes the court to delve into theological spaces.
• In criticism of the test, scholars agree that the court should 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.

Issues over the doctrine

• In the beginning, the court engaged with the question of whether untouchability, manifested in restrictions on entry into temples, was an “essential part of the Hindu religion”.
• After examining selected Hindu texts, it concluded that untouchability was not an essential Hindu practice.
• The idea of providing constitutional protection only to those elements of religion that the court considers “essential” is problematic as it assumes that one element or practice of religion is independent of other elements or practices.
• So, while the essentiality test privileges certain practices over others, it is all practices taken together that constitute a religion.

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

• There are two sets of rulings of the Kerala High Court, particularly on the right of Muslim women to dress according to the tenets of Islam, throwing up conflicting answers.
• In 2015, at least two petitions were filed before the Kerala High Court challenging the prescription of dress code for the NEET exam which prescribed wearing clothes with a 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 the collective rights of an institution would be given primacy over the individual rights of the petitioner.

Way Forward

• Pluralism and inclusiveness are characterized 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 prioritizes 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 worked to desexualize women in the public sphere to allow them to enjoy equal rights of completely legal, economic, and political status.

Conclusion

• Given the split verdict, it will be a while before the final verdict in the matter is delivered. Ultimately, it must be remembered the State has a responsibility towards the education of the girl and her future and maintaining the secular fabric in India.
• Thus the government, civil society, religious and student bodies must try to come together and look for an amicable out-of-court solution to the issue which is in the best interest of all and also reduces dependency on courts for social reforms.

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