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The Hijab Row: Questions before the Karnataka High Court

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 questions
  • 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 questions.

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 Islam?

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?

  1. Meaning of Essentiality Test

    To answer the first question, the Supreme Court of India clearly defines it in the Commissioner of Poice v. Acharya Jagadishwarananda Avadhuta (2004) case. The Hon'ble 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 practice of 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).
  2. Prior Judicial Pronouncements regarding Hijab Row:

    The Kerala High Court recognized wearing Hijab as an essential practice of Islam in the Amnah Bint Basheer and Anr. vs. Central Board of Secondary Education (CBSE) 2016.

    The judgment was in response to the dressing guidelines by CBSE for the All India Pre-Medical Tests. The dress code was introduced to check the rampant practice of cheating in the exam. However, these rules prohibited Muslim women from wearing Hijab in exam
    halls.

    In this case, the Hon'ble High Court recognized that wearing Hijab by Muslim women constitutes an essential practice and that women should be allowed to wear the same.
  3. International Law regarding Hijab:

    The Internation Bill of Human Rights includes International Covenant on Civil and Political 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 such freedoms 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 protecting diverse religious identities within a safe, secular framework. The Supreme Court has walked this tightrope, balancing pluralism and secularism, multiple times.


For instance, in the Bijoe Immanuel vs. State of Kerala (1986) case, the Supreme Court ruled in favor of three students who got expelled from school for refusing to sing "Jana Gana Mana".

The Hon'ble Court stated that singing national anthem was against the students' religious faith of Jehovah's Witnesses. Hence, their expulsion from school violated their right to profess and practice their religion.

This reflects the Supreme Court's usage of constitutional morality in sensitive cases involving constitutional dilemmas. The Hijab ban controversy also expects that the Indian judiciary addresses the Hijab row based on the ethics of a progressive-inclusive society.

Conclusion
While the majority considers the Hijab row as a fight for freedom of religion, a closer analysis 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 divisions become faultlines, the integrity of the nation gets threatened.

Therefore, it is of utmost importance that the Indian judiciary addresses these major constitutional dilemmas before its polarisation effects get spilled over in the poll-bound states.

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