A college in Karnataka denied entry to six Muslim girls for wearing Hijabs to
college. This led to a nationwide debate around Hijab row raising multiple
- Does wearing markers of religion in public spaces violate the Indian
brand of secularism?
- Is wearing a Hijab or head-scarves an essential practice of Islam?
- Can the right to education be denied on the grounds of establishing uniformity?
These questions form a significant turning point in independent India's legal
history. They involve key constitutional provisions of Articles 19, 21A, 25,
etc. In fact, these questions have become a national controversy today!
Therefore, as the nation closely observes if this Hijab row turns into another
Shah Bano moment, this article explains the matter through three pertinent
The Hijab Row: Does the Hijab ban violate fundamental rights of Muslim women?
The current Hijab row was triggered by a Hijab ban decision of a pre-university
college in Udupi, Karnataka. Similar demands for banning Hijab followed in
educational institutions of other districts as well.
This wave can threaten multiple fundamental rights of Muslim women.
- The practice of wearing Hijab lies at the core of the Islamic faith.
Therefore this ban, first and foremost, violates Article 25(1) of the
Constitution. This article secures the right to freely profess, practice,
and propagate one's religion.
- The gender gap in literacy rate and labor force participation is already
tilted against women. On top of it, the Covid-19 lockdown has caused severe
losses to learning. In this context, creating a choice between education or
identity is not only unjust but also violates Article 21A or the right to
access to education.
- Moreover, Justice K.S.Puttaswamy Case (2017) ruling clearly
states that choices expressed in public such as faith or modes of dress is
a part of the right to privacy. Hence, to put a ban on the expression of
one's faith or mode of dress violates both right to freedom of expression (
Article 19(1)) and the right to privacy ( Article 21).
- Finally, the right to equality under Article 14 is also challenged by
the Hijab row when Sikh's turban, Christian crosses, and Hindu pendants are
allowed to be worn freely.
- The Karnataka High Court bench headed by Chief Justice Ritu Raj Awasthi,
is currently looking into these issues.
In this Hijab row case, Senior advocate Devdatt Kamat is representing the
petitioners in the Karnataka High Court. He has highlighted the positive
nature of Indian secularism, rooted in the idea of Sarva Dharma Sama Bhava
(equal respect to all religions for peaceful co-existence).
The Essentiality Test: Does wearing Hijab comprise an essential practice of
To answer this question of whether Hijab is an essential practice or not, three
areas need to be covered.
- What does an essential practice mean?
- What are the prior judicial statements about the Hijab rows?
- And, how does international law address the practice of wearing Hijab?
Meaning of Essentiality TestTo answer the first question, the Supreme Court of India clearly defines it in
Commissioner of Poice v. Acharya Jagadishwarananda Avadhuta (2004) case. The
Court says the essentiality is:
"Test to determine whether a part or practice is essential to the religion - to
find out whether
the nature of religion will be changed without that part or practice".
Based on this understanding, wearing a Hijab should be considered an essential
Islam. Hijabs have been an age-old practice integral to Muslim women. Its
centrality to the
religion is also explained in the Holy Qur'an (Verses 24.31 & 33.59).
Prior Judicial Pronouncements regarding Hijab Row:The Kerala High Court recognized wearing Hijab as an essential practice of Islam
Amnah Bint Basheer and Anr. vs. Central Board of Secondary Education (CBSE)
The judgment was in response to the dressing guidelines by CBSE for the All
Pre-Medical Tests. The dress code was introduced to check the rampant practice
in the exam. However, these rules prohibited Muslim women from wearing Hijab in
In this case, the Hon'ble High Court recognized that wearing Hijab by Muslim
constitutes an essential practice and that women should be allowed to wear the
International Law regarding Hijab:The Internation Bill of Human Rights includes International Covenant on Civil
Rights or ICCPR. Two articles of ICCPR are very crucial in the context of
freedom of women
for wearing Hijab.
Firstly, Article 2(1) of the ICCPR specifically requires states parties to
respect and ensure
rights to all "without distinction of any kind" including religious, political,
or other opinion.
Secondly, Article 18 (1) of the ICCPR also states:
"..freedom, either individually or in community... in public or private, to
manifest his religion
or belief in worship, observance, practice and teaching."
Therefore, International Law clearly establishes that any practice that violates
as wearing Hijab also violates basic human rights.
Pluralism v/s Secularism:
How does the Supreme Court balance the two?
Our Constitution makers knew that the survival of democracy in India relies on
diverse religious identities within a safe, secular framework. The Supreme Court
this tightrope, balancing pluralism and secularism, multiple times.
For instance, in the Bijoe Immanuel vs. State of Kerala
(1986) case, the Supreme
in favor of three students who got expelled from school for refusing to sing
The Hon'ble Court stated that singing national anthem was against the students'
faith of Jehovah's Witnesses. Hence, their expulsion from school violated their
profess and practice their religion.
This reflects the Supreme Court's usage of constitutional morality in sensitive
constitutional dilemmas. The Hijab ban controversy also expects that the Indian
addresses the Hijab row based on the ethics of a progressive-inclusive society.
While the majority considers the Hijab row as a fight for freedom of religion, a
would reveal it as a fight for education.
In fact, wearing markers of religion in public spaces, Hijab or saffron shawls,
is not an
uncommon practice in India. However, when diversity becomes divisions and
become faultlines, the integrity of the nation gets threatened.
Therefore, it is of utmost importance that the Indian judiciary addresses these
constitutional dilemmas before its polarisation effects get spilled over in the
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