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The Hijab Controversy: Unwarranted and Uncalled For

Not many days back, a new controversy sparked fire in Karnataka which, reflecting the times we live in, again involved the issue relating to religion. Constant attacks on religious beliefs and faiths have become a frequent issue in India within the past few years and these cases are creating precedents over precedents on a similar ground.

The recent controversy rose in Karnataka when the State Government issued a GO (Government Order) putting a ban on headscarves in Pre-University Colleges. In pursuance to this GO, the Government Colleges denied entry to Muslim girls wearing a Hijab. The reason that the State cited for the imposition of such a restriction was that such clothes create discrimination and affect equality, integrity as well as public law and order.

They came through the Karnataka Education Act, 1983 and hence stated that a uniform style of clothing needs to be worn by the students. The ban started from Udupi, Karnataka and thereon spread to all other colleges showing a similar response towards Muslim students with Hijab.

As a consequence of such a ban being imposed, a Muslim girl filed a petition before the Karnataka High Court challenging such a discriminatory GO. Interestingly, this gave rise to a substantial question of law as to whether there is a right to wear hijab in an educational institution under Article 25 of the Constitution.[1] To this, affirmative arguments were made and it was pleaded that wearing Hijab is an essential religious practice in Islam.

Considering the fact that essential religious practice falls under the purview of Article 25 of the Constitution, the State Government cannot take over this right in any manner. Upon a bare reading of Article 25(1), one comes across the words "all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion". Given the fact that Hijab is considered to be an essential religious practice, the freedom to adorn it is clearly stated in Article 25(1) and the State is encumbered with the duty to protect this right.

It was also contended that the right to wear a dress is a facet of the fundamental right to speech and expression guaranteed under Article 19(1)(a), and threshold of '\public order should be extremely high to impose any restriction thereto under Article 19(2).[2] Although, public order, morality and health are covered under the purview of reasonable restrictions to Fundamental Rights in the Constitution, wearing of a head-scarf does not seem to be covered under any of these restrictions.

In order to understand the essential religious practice, it may be wise to go back to the well-noted case of 1954 namely The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Shri Shirur Mutt [3] (famously known as The Shirur Mutt Case).

In this case, it was held as follows:
"A religious denomination, or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters."

By referring to the phrase "complete autonomy", one may perceive that adherents to a particular religion have absolute freedom to profess anything and everything which forms a part of their religion, according to their own beliefs. However, that is not true; and this has been clearly reflected in the case of Shayara Bano v. Union of India[4]. In this case, the Apex Court had made it outrightly clear that an arbitrary act cannot be considered as an essential religious practice.

The Court held as follows:
"Since Article 25(1) is subject to Part III of the Constitution, as such, it was liable to be in consonance with, and not violative of the rights conferred through Articles 14, 15 and 21 of the Constitution. Since the practice of talaq-e-biddat clearly violates the fundamental rights expressed in the above Articles, it was submitted, that it be declared as unconstitutional."
Similarly, in the case of State of W.B. v. Ashutosh Lahiri[5], the Supreme Court had held the following:
"Sacrifice of any animal by Muslims for the religious purpose on BakrI'd does not include slaughtering of cows as the only way of carrying out that sacrifice. Slaughtering of cows on BakrI'd is neither essential to nor necessarily required as part of the religious ceremony. An optional religious practice is not covered by Article 25(1)."

Hence, it is not always a case that the judiciary provides an undeterred wideness to the term essential religious practice. Keeping this in mind, wearing of Hijab is a part of the religion of Islam as it is followed worldwide and is recognised as such globally. On the face of it, students wearing Hijab to their schools or colleges as a form of respect towards their own religion or community does not seem to be even remotely affecting the reasonable restrictions to the Fundamental Rights of the Constitution.

Throughout this entire issue, it has been extremely difficult to understand why Hijab is disturbing public law and order specifically in educational institutions. A Committee can specify the uniform but it doesn't seem fair to specify the manner in which it is required to be adorned. Covering the head is a traditional get-up in many religious customs but, when the specification of head scarves comes into picture, particularly pointing towards Hijab, it targets one specific religion and that is discrimination on the basis of religion.

The Cambridge English Dictionary defines equality as "the right of different groups of people to have a similar social position and receive the same treatment". Irony laughs in our faces, as these days, we distinguish among people in the name of equality.

End-Notes:
  1. https://www.livelaw.in/top-stories/hijab-ban-govt-college-karnataka-high-court-muslim-girls-students-public-order-191432
  2. https://www.thehindu.com/news/national/karnataka/hijab-controversy-hc-told-that-karnatakas-dress-code-guideline-is-violative-of-fundamental-rightsthere-is-a-box-below/article38396906.ece
  3. 1954 AIR 282
  4. (2017) 9 SCC 1
  5. (1995) 1 SCC 189
Written By: Dr Farrukh Khan is an Advocate and Managing Partner of Law Firm- Diwan Advocates.

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