The interpretative answer to the hijab row

Context

• A number of Muslim girl students in the town of Udupi, Karnataka, have been refused entry into their college objects to them covering their heads with a hijab.

Background of Udupi

• Udupi has a proud tradition of having rebels who have challenged established norms that have not stood the test of reason.
• In the 16th century, priests at the Krishna temple in Udupi prevented a lower caste devotee, Kanakadasa, from entering it.
• He refused to go away and began composing and singing kirtans from the courtyard outside, while waiting to secure a sight of the deity. Even after many days, the priests did not relent but a miracle intervened.

  

• The idol of the deity which until then faced eastwards, miraculously turned 180 degrees to face west, and then broke open a rear wall to create a window through which Kanakadasa could have his darshan. Even today all devotees have their first sight of the lord through Kanakadasa’s window.

Implication of the essential religious practices test

• The “essential religious practices” test appeased traditionalists by ‘assuring them that the Court would be sympathetic to their respective religious faiths. It also supported state-sponsored reform by leaving one agency of the state — the judiciary — with the power to determine and pronounce upon (perhaps, transform) religious practice and belief’.
• Justice D.Y. Chandrachud in the Sabarimala case, bemoaned, “… compulsions nonetheless have led the court to don a theological mantle. The enquiry has moved from deciding what is essentially religious to what is an essential religious practice. Donning such a role is not an easy task when the Court is called upon to decide whether a practice does nor does not form an essential part of a religious belief.
• In the case of the hijab, there is no doubt that an observant Muslim woman might insist that the following verses from the Koran mandate her to keep her head covered.

Current Issues of Hijab

• In the absence of a statutory uniform code, a court may well ask whether a head covering mandated by some religions, when worn in addition to the uniform, violates any legal tenet.
• Would the same standards that banish a female hijab apply to a turban worn by a male Sikh student?
  • Can government colleges deny education to students who are seen to be violating a uniform code?
  • Is the hijab or even a full covering in any manner violative of the process of imparting education?
  • Can a government committed to female education deny education to those it deems improperly dressed?
  • Should implementation of a dress code be prioritised over imparting education to all that seek it?
  • These and other like questions will probably soon engage the attention of a constitutional court.

Important Judgements of SC

• Three years after Shirur Math , in 1957, the Supreme Court, in Sri Venkataramana Devaru vs State of Mysore , had to examine whether the exclusion of a person from entering into a temple for worship is a matter of religion according to Hindu ceremonial law. The Court held “… that the right of a denomination to wholly exclude members of the public from worshipping in the temple, though comprised in Art. 26(b), must yield to the overriding right declared by Art. 25(2)(b) in favour of the public to enter into a temple for worship. But where the right claimed is not one of general and total exclusion of the public from worship in the temple at all times but of exclusion from certain religious services, they being limited by the rules of the foundation to the members of the denomination, then the question is not whether Art. 25(2)(b) overrides that right so as to extinguish it, but whether it is possible-so to regulate the rights of the persons protected by Art. 25(2)(b) as to give effect to both the rights”.
• In the Commissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt case, or Shirur Mutt , of 1954, the Court ruled, “….what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.” Ever thereafter, the judgment in Shirur Mutt has remained the focal point of constitutional discussion on religious freedoms.
• In Amna Bint Basheer v Central Board of Secondary Education (2016), the Kerala High Court held that the practice of wearing a hijab constitutes an essential religious practise but did not quash the dress code prescribed by CBSE. It rather provided additional safeguards, such as examining students wearing full sleeves when needed.
• In Fathima Tasneem v State of Kerala (2018), Kerala HC held that collective rights of an institution would be given primacy over the individual rights of the petitioner. The case involved two girls who wanted to wear the headscarf. The school refused to allow the headscarf. However, the court dismissed the appeal as students were no more in the rolls of the respondent-School.

Way Forward

• That court may do well to heed Justice R.F. Nariman’s dictum in the Sabarimala review which says, “… After all, in India’s tryst with destiny, we have chosen to be wedded to the rule of law as laid down by the Constitution of India. Let every person remember that the “holy book” is the Constitution of India,… ”
• In the hijab case, the courts will be called upon to protect an essential religious practice, in a manner consistent with imparting education in an orderly fashion.

Back to basics

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 negative liberty — which means that the state shall ensure that there is no interference or obstacle to exercising this freedom.
• Like all fundamental rights, the state can restrict the right for grounds of public order, decency, morality, health and other state interests.

Source: TH

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