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Challenges To Choice: Hijab Controversies And Freedom Of Religion In India

Hijab, a covering worn by Muslim women, sparks debates worldwide, including in India. It's more than just a piece of fabric; it's tied to tradition, modern life, and identity.

The word "hijab" comes from Arabic, meaning covering. While some say it's a religious duty, interpretations vary, shaped by culture and history.

Two big issues arise: Muslim women are becoming more visible in Western countries, raising questions about Islam's role. And within Muslim communities, hijab reflects deep identity struggles and is seen as a symbol of Muslim identity. But hijab isn't just about clothes; it's about modesty and respect. It acts as a barrier against unwanted attention, helping preserve dignity.

In India, where many faiths coexist, the constitution ensures religious freedom for everyone. But this freedom isn't absolute; it must respect public order and morality. Courts have clarified these freedoms over time, ensuring that religious practices don't harm others or disrupt society. Whether it's using loudspeakers for prayers or conducting rituals, the law aims to balance individual beliefs with the common good.

Historical Context Of Religious Freedom In India:

India has a long history of accepting different religions peacefully. Hinduism, Buddhism, Jainism, and later Sikhism, all existed together and shared ideas. They believed in doing good and accepting others' beliefs.

Islam came to India later, bringing new ideas. Sometimes there were fights, like during the Delhi Sultanate. But during the Mughal Empire, there was also mixing of cultures and religions. Akbar, a Mughal Emperor, was famous for accepting all religions.

When the British ruled India, things got more complicated. At first, they didn't interfere with religion. But later, they used strategies to divide people. In 1947, India was split into India and Pakistan, mainly because of religion.

India's Constitution, made in 1950, says India is a secular country. This means the government doesn't favor any religion. It protects people's right to practice any religion they want. But sometimes, there are fights because of religion. Laws try to stop discrimination. But there are still issues like forced religious conversions and violence against minorities.

The Quranic Perspective On Hijab: Meaning And Significance In Islam:

In Islam, the hijab carries profound meaning and significance as derived from the Quran, the central religious text of Islam. While the term "hijab" itself may not be explicitly mentioned in the Quran in the context of women's clothing, the principles of modesty, dignity, and social interaction are addressed.

The verse that is often used to prove the "obligation" of the veil for women and which mentions the word hijab is the following: "O you who believe, do not enter the house of the Prophet when you are permitted. A meal� and when you [his wives] If you ask for anything, ask them behind their veils (hijab)" [Quran 33; 53.]

As indicated here, the hijab pertains only to the Prophet's wives and fulfills a situational need to respect the Prophet's private life. Furthermore, it does not, in any way, represent a specific model of clothing. The essence of this requirement was, mainly, to educate the Arabs of the time to respect privacy and good manners.

There is another verse that mentions a word for scarf. This verse says: "... and tell the believing women to lower their sight [somewhat] and to guard their private parts and not to reveal their adornment (jinathuna) except that which [must] be shown and [must] be covered." [Quran 24;31]

The Qur'an invites believing women to fold their scarves (khimar) over their chests (juyubihina) to cover the upper part of their breasts in public.

Following are the important Quranic verses about hijab:

"O children of Adam! We have clothed you to cover your private parts and to adorn you. But the garments of righteousness, that is the best. These are among the signs of Allah, that they may accept. Admonition." (Quran 7:26)

"O Prophet, tell your wives, your daughters and the women of the believers (when they go abroad) to draw their cloaks around them. It will be better, so that they can recognize and not be offended. Allah is Ever Forgiving, Merciful." (Quran 33:59).

Significance of Hijab:

Modesty and dress code: The Quran underlines the principle of modesty for both men and women. Surah An-Nur (24:30-31) instructs believing men and women to lower their gaze and guard their private parts. Women are further instructed to draw their veils over their chests and not to display their beauty except to certain individuals. This verse lays the foundation for the concept of hijab as a form of modest attire for Muslim women.

Identity and representation: While the Quran does not prescribe specific details of women's dress, it encourages modest attire and behavior. Surah Al-Ahzab (33:59) advises believing women to cover themselves with their outer garments when they go out, in order to be recognized as virtuous and to avoid harassment. This verse underscores the significance of hijab as a visible marker of Muslim identity and faithfulness to Islamic values.

Obedience to God's command: Wearing the hijab is often viewed as an act of obedience to Allah's commandments. Surah Al-Ahzab (33:36) highlights the importance of obeying Allah and His Messenger, indicating that doing so brings reward and blessings. By following to the principles of hijab, Muslim women demonstrate their submission to divine authority and their commitment to Islamic teachings.

Dignity and respect: The Quran promotes the dignity and respect of all individuals, regardless of gender. Surah Al-Hujurat (49:13) emphasizes the equality of all believers and discourages derogatory assumptions or judgments based on outward appearance. Hijab is seen as a means of preserving women's dignity and autonomy, protecting them from objectification and exploitation.

Personal choice and spiritual growth: While hijab is considered a religious obligation by many Muslims, it is also recognized as a personal choice for individuals. Surah Al-Baqarah (2:256) affirms the principle of freedom of religion and emphasizes that there is no compulsion in matters of faith. Embracing the hijab can be a deeply personal journey of spiritual growth and self-discovery, allowing individuals to express their devotion to Islam in their own way.

Protection Of Freedom Of Religion Under Indian Constitution

The Indian Constitution guarantees the freedom of religion under Articles 25 to 28:
  • Article 25 to 28 of Part-3 (Fundamental Rights) of the Constitution confers Right to freedom of religion.
  • 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.
  • Article 26 talks about the freedom to manage religious affairs subject to public order, morality and health.
  • Article 27 states that no person shall be compelled to pay any taxes for the promotion or maintenance of any particular religion.
  • Article 28 states that the freedom to attend religious instruction or religious worship in certain educational institutions.
These articles provide individuals and religious communities the right to profess, practice, and propagate their religion freely, subject to public order, morality, and health. These articles also grant the freedom to manage religious affairs and prohibit taxation for promoting any particular religion. Additionally, the Constitution ensures freedom from religious instruction in certain educational institutions. Landmark judgments have upheld these principles, emphasizing the autonomy of religious denominations and the protection of individual rights, while also addressing issues such as gender equality and social harmony. Overall, the Indian Constitution aims to maintain a balance between religious freedom and other societal interests.

In Sri Venkataramana Devaru and Ors. vs. State of Mysore, the Supreme Court held that the state cannot interfere with the administration of religious institutions unless the management of these institutions affects public order, morality, or health.

Regarding the hijab, which is a religious headscarf worn by Muslim women, its protection under the freedom of religion depends on various factors, including individual choice, religious beliefs, and societal context. In India, the wearing of the hijab is generally considered an expression of religious identity and is protected under the freedom of religion provisions of the Constitution.

In Srimad Perarulala Ethiraja Ramanuja Jeeyar Swami vs. State of Tamil Nadu, the Supreme Court upheld the right of a religious denomination to manage its own affairs without state interference, including the right to administer religious institutions.

Recent Hijab Controversies In India

The Karnataka hijab controversy emerged when several female Muslim students at a government pre-university college in Udupi district were barred from attending classes wearing hijabs. The college authorities cited their dress code policy, which prohibited students from wearing religious symbols or clothing. This sparked protests and debates about religious freedom and secularism in India.

The controversy escalated when similar incidents were reported from other educational institutions in Karnataka, leading to widespread discussions across the country. The Karnataka High Court intervened to hear petitions challenging the ban on hijabs in educational institutions.

However, the Karnataka High Court upheld the ban on hijabs in educational institutions, ruling that hijabs are not an essential part of Islam and therefore not protected under the fundamental right to religion. It stated that the state government had the authority to regulate clothing within educational institutions without violating individuals' rights to expression and privacy, though this regulation applied only within classrooms. The court found the government's order from February 5 legal, which mandated wearing prescribed uniforms or clothing that did not disrupt public order. The controversy emerged when Muslim students were denied entry to classrooms for wearing hijabs, leading to petitions challenging the ban.

The court addressed four key issues, including whether wearing hijabs is an essential religious practice, the legality of prescribing school uniforms, the validity of the government's order, and disciplinary actions against school authorities. It concluded that hijab bans were not discriminatory and upheld institutes' power to prescribe uniforms. Additionally, the court expressed concern about external forces exacerbating social unrest related to the hijab controversy, urging a swift investigation.

The Hijab Debate - A Socio-Legal And Political Perspective

The ongoing controversy surrounding the Hijab, particularly in Karnataka, has sparked heated debates over identity, minority rights, autonomy of choice, and electoral politics. Stemming from the "Hijab row" in Karnataka, where girl students were prohibited from wearing headscarves in educational institutions, the issue has raised fundamental questions about human rights and religious expression. The Hijab, beyond its religious significance, has become a symbol of dissent and identity assertion for Muslim women, challenging societal norms and injustices.

The legal battle surrounding the Hijab ban in Karnataka reflects broader discussions on women's autonomy and constitutional rights. Proponents of the ban argue it protects girls from oppressive religious practices, but critics assert it infringes upon individual freedoms and reinforces patriarchal structures. The ban's constitutionality is questioned, as it potentially violates constitutional provisions safeguarding religious freedom, right to education, and freedom of expression.

Critics argue that the ban undermines diversity and inclusivity in educational spaces, violating constitutional principles of secularism and equality. They contend that the state's intervention infringes upon personal freedoms without justifiable cause, thus contravening constitutional protections. The debate underscores the complexities of balancing religious practices with constitutional rights, highlighting the need for nuanced legal interpretations and considerations of societal realities.

While some argue for the girls' freedom of religious expression, others highlight the autonomy of educational institutions to set uniform rules. Political interests have further fueled the issue, with opposition parties and vested groups connecting it to larger political agendas, particularly targeting the ruling BJP government. Critics point out that hijab isn't universally mandated in Islam and cite examples of countries where it's not practiced. Moreover, the involvement of groups like the Campus Front of India (CFI), linked to radical organizations, suggests a deeper political agenda. International perspectives, including criticism from Pakistan, are viewed with skepticism, given their own domestic challenges. The situation underscores a blend of religious, political, and international dynamics, with the resolution likely to involve careful administrative and judicial handling.

International Perspectives And Comparisons

Hijab controversies have emerged in various parts of the world, each shaped by unique historical, cultural, political, and legal contexts.

In many Western countries, including those in Europe and North America, debates around hijab often revolve around issues of religious freedom, secularism, and women's rights. While some argue that banning hijab in certain contexts, such as schools or government institutions, is necessary for upholding secular values and gender equality, others see such bans as discriminatory and infringing upon religious freedoms.

France has a particularly contentious relationship with the hijab due to its strict secularism laws, which are rooted in the principle of la'cit. France has a long history of secularism, and the hijab has been a contentious issue within the country. In 2004, France passed a law banning conspicuous religious symbols, including the hijab, in public schools. In 2010, the French parliament also passed a law banning face-covering garments, such as the niqab and burqa, in public spaces. These laws were justified on the grounds of secularism, women's rights, and integration. However, they have been criticized by some as discriminatory and infringing upon religious freedom.

Turkey has also experienced debates over the hijab, with a history of bans on wearing it in certain public institutions, including universities and government offices. These bans have sparked protests and discussions about secularism, democracy, and women's rights in the country.

In Iran, the hijab has been a subject of both legal enforcement and resistance. Since the Islamic Revolution in 1979, the Iranian government has mandated that women cover their hair in public spaces. Violating the hijab requirement can result in fines or even imprisonment. However, there have been ongoing protests and movements advocating for women's rights and the right to choose whether to wear the hijab.

In Saudi Arabia, the hijab is not only a cultural norm but also legally enforced. The country's strict interpretation of Islamic law mandates that women wear the abaya (a loose-fitting robe) and cover their hair in public. The religious police, known as the Committee for the Promotion of Virtue and the Prevention of Vice, enforce these dress codes. While there have been some recent reforms loosening restrictions on women's attire, the hijab remains a highly politicized issue.

In the United States, debates over the hijab often intersect with discussions about religious freedom, diversity, and discrimination. While the U.S. Constitution protects the right to religious expression, including the wearing of religious attire like the hijab, there have been cases of discrimination and prejudice against Muslim women who choose to wear it. Additionally, some states have proposed or implemented laws targeting religious attire, although these have often faced legal challenges.

In Nigeria, particularly in the northern regions with significant Muslim populations, the hijab has been a subject of controversy in educational institutions. Some schools have implemented dress codes banning the hijab, leading to protests and legal battles. These controversies often reflect broader tensions between religious and secular authorities, as well as debates over cultural identity and women's rights.

In India, debates over the hijab intersect with broader issues of religious freedom, identity politics, and communal tensions. While the Indian Constitution guarantees freedom of religion, controversies have arisen over attempts to regulate religious attire in educational institutions. In recent years, there have been instances where Muslim women have faced restrictions on wearing the hijab in schools and colleges, leading to protests and legal battles.

While each country's approach to the hijab controversy is shaped by its unique historical, cultural, and political context, there are some common themes. These include tensions between secularism and religious freedom, debates over women's agency and autonomy, and concerns about discrimination and marginalization of Muslim communities.

Legal Battles And Landmark Cases - Hijab Litigations In India

Amna Bint Basheer v CBSE 2016 (2) KLT 601
In 2015, All India Pre-Medical Entrance which prescribed wearing "light clothes with half sleeves not having big buttons, brooch/badge, flower, etc. with Salwar/Trouser" and "slippers and not shoes". Challenging the prescription of dress code for at least two petitions were filed before the Kerala High Court.

The case raises a fundamental question regarding the extent to which the Constitution protects religious practices, a matter that has been extensively deliberated upon by the Hon'ble Supreme Court since 1954.
It highlights that practices such as offerings to idols, periodic ceremonies, recital of sacred texts, and oblations to the sacred fire, prescribed by the tenets of Hindu religious sects, are integral parts of religion.
The judgment argues that the involvement of financial expenditure, employment of priests, or use of marketable commodities does not diminish the religious nature of these practices; they should still be considered matters of religion under Article 26(b) of the Constitution.

Petitioner's Argument:
The petitioners' concern is that the dress code as now prescribed would not allow the candidates to wear the headscarf and full sleeve dress. It is the case of the petitioners that Shariah mandates women to wear the headscarf and full sleeve dress and therefore, any prescription contrary is repugnant to protection of the religious freedom as provided under Article 25(1).

Respondent's Argument:
The learned Senior Counsel appearing for the Board opposed this prayer. He would submit that no such omnibus relief can be granted to unidentifiable applicants and there would be a practical difficulty for the Board in implementing such directions.

Decision of the Court:
In Amna Bint Basheer v CBSE (2016), 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 Thasneem V. State of Kerala (2018)
The school has implemented a uniform policy. The petitioners want to wear a headscarf and full sleeve shirt, which is not consistent with the dress code prescribed by the school authority. The school authority directed the petitioners to adhere to the proper dress code, but the petitioners refused and insisted on wearing the headscarf and full sleeve shirt.

  • When a right to wear specific attire is claimed against a private entity, which also has the Fundamental Right to manage and administer an institution, how should the Court balance the competing Fundamental Rights?
The right to establish, manage, and administer an institution is considered a Fundamental Right. Therefore, the Court must balance the competing Fundamental Rights in order to uphold the interest of the dominant party. A single Bench of the Kerala HC held that collective rights of an institution would be given primacy over individual rights of the petitioner.

Resham V. State of Karnataka (2018)
The petitioners, girl students, sought to challenge the Government Order dated 05.02.2022 which prohibited the wearing of hijab (head-scarf) in educational institutions. The petitioners argued that wearing hijab is an essential religious practice of Islam and that the government and schools cannot prescribe a dress code that does not permit the students to wear hijab. The government and schools argued that the power to prescribe school uniform is inherent in the concept of school education and that the regulations prescribing dress code for all students serve constitutional secularism.

  • Whether wearing hijab is an essential religious practice of Islam?
  • Whether the government and schools can prescribe a dress code that does not permit the students to wear hijab?
  • Whether the prescription of school uniform to the exclusion of hijab is constitutional?
  • Whether the petitioners are entitled to relief?

The court held that wearing hijab by Muslim women does not form a part of essential religious practice in Islamic faith. The court also held that the prescription of school uniform is only a reasonable restriction constitutionally permissible which the students cannot object to. The court dismissed the writ petitions filed by the petitioners as being devoid of merits and not maintainable.

Aishat Sifha V. State Of Karnataka
In this case, the central question was whether the State can limit students' fundamental rights, like dignity, privacy, and freedom of expression, for the sake of 'uniformity and equality'. The Appellant challenged a Government Order under the Karnataka Education Act, 1983, which banned wearing religious symbols, including headscarves, in schools and colleges. This resulted in female Muslim students being denied entry unless they removed their hijab. The High Court upheld the Order, stating that the restrictions didn't violate substantive rights under Article 19(1)(a) and Article 21 of the Constitution, as the curtailed rights were derivative. The Appellant appealed this decision to the Supreme Court.

  • Is wearing a hijab/headscarf part of an essential religious practice of the Islamic faith protected by Article 25 of the Constitution
  • Whether requiring students to wear prescribed uniforms is legitimate or not, as it violates their fundamental rights, including those protected by Article 19(1)(a) (freedom of speech) and Article 21 (privacy) of the Constitution.
  • Apart from being incompetent and issued without authority, is the Government order dated 05.02.2022 clearly arbitrary and thus contrary to Articles 14 and 15 of the Constitution?
  • Whether prescription of school uniform is violative of the students' fundamental rights inter alia, the right to freedom of expression under Article 19(1)(a) and the right to privacy under Article 21 of the Constitution.

The Supreme Court's division bench, comprising Justices Hemant Gupta and Sudhanshu Dhulia, delivered a split verdict. Since they couldn't agree, the Court referred the case to a larger bench to decide. Justice Gupta upheld the Government Order, stating it regulated rights during school hours for uniformity and equality, aligning with Article 14. He found it didn't violate freedom of expression and privacy under Articles 19(1)(a) and 21.

On the contrary, Justice Dhulia deemed the Order unconstitutional, arguing it infringed upon Article 19(1)(a) and Article 21, as it encroached upon the fundamental rights to privacy and dignity of the students, particularly female students wearing hijab. He disagreed with the High Court's analysis, emphasizing the need for a reasonable justification for such restrictions, which the State failed to provide.

The hijab debate in India intersects complex intersections of religion, identity, politics, and constitutional rights. The controversy surrounding the ban on hijabs in educational institutions, particularly in Karnataka, has ignited intense discussions regarding individual freedoms, religious expression, and societal norms.

While some argue for the protection of religious identity and freedom of choice, others stress the autonomy of educational institutions and the need for uniformity. Legal battles, such as those highlighted in landmark cases, underscore the delicate balance between religious practices and constitutional rights. As the hijab controversy unfolds, it reflects broader global discussions on secularism, women's rights, and cultural diversity. Ultimately, resolving these tensions requires nuanced considerations of individual liberties, institutional autonomy, and societal harmony within the framework of constitutional principles.


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