Karnataka High Court is seized of the matter of Muslim girl students of a Government College of the town of Udupi, who were denied entry in their class for wearing Hijab, the head scarf, a covering, to which they have been used to. Initially, such students were only six, later their number increased manifold. They did not rebel overnight, this is a practice which other female members of their families were used to as well and they simply followed on learning that it is a part of their faith and belief.
The college administration went on to relent on its stand to ban hijab in class rooms of the government college, despite students pleading against it. They and their parents argued with the college authorities that it is their constitutional right to wear their clothing as per their religious practice. The educational institution cited the government’s order requiring a prescribed uniform to be worn by all students and hijab is not a part of the uniform. One student Resham, approached the Karnataka High Court to seek redress, three more students also joined in the matter known as, Resham v State of Karnataka and Ors. Therefore the matter is now sub-judice.
The Karnataka HC has begun considering petitions essentially, seeking to allow students to enter colleges and schools wearing hijab, if so desired. Justice Krishna Dixit started proceedings by saying, “We will go by reason, by law, not by passion or emotions. We will go by what the Constitution says.
At the time of this piece being written, the Justice Krishna Dixit referred the matter to the larger bench to decide whether schools and colleges can order Muslim girls to not wear hijabs in class. On Wednesday, a day after a face-off over the right to wear the religious headscarves forced educational institutes to close down for three days, as per orders of the Chief Minister Basavaraj Bommai. He also asked all concerned to remain calm and maintain peace.
"These matters give rise to certain constitutional questions of seminal importance in view of certain aspects of personal law," the judge hearing the case said, referring it to a panel of judges to be led by the Chief Justice of the Karnataka High Court Ritu Raj Awasthi.
"In view of the enormity of questions of importance which were debated, the court is of the considered opinion that the Chief Justice should decide if a larger bench can be constituted in the subject matter," Justice Krishna S Dixit said.
"The bench was also of the view that the interim prayers should also be placed before larger bench that may be constituted by Chief Justice Awasthi exercising his discretion," he added.
The case had been filed by a group of Muslim girls studying in government colleges in the Udupi district against a ban on wearing hijabs in classrooms.
The controversy over headscarves has been boiling for quite a number of days (January 1, 2022) and took a violent turn on Tuesday, forcing policemen to fire tear gas shells to disperse a crowd gathered at a government college. Schools of neighbouring cities also had substantial police presence.
Students at a government-run high school were told not to wear hijabs last month. Other educational soon followed it. Non-Muslim students are blaming Muslim students for interrupting education by not conforming to government orders. Muslim students are also suffering as they consider the ban on hijab, disruptive of their freedom of religion.
Main thrust of the petitioners’ submissions being that wearing a hijab is an essential religious practice of the petitioners and that the government had no jurisdiction to impose orders in restricting the use of hijab. They also asserted that when they sought admission, they were wearing hijab and it was not pointed out that they will have to do away with the hijab on being admitted.
The chief minister of Karnataka has stated that,"There is a rule in the constitution regarding uniformity in schools and colleges. The rules are also clearly mentioned in the Karnataka Education Act. All these rules are clear as to what's to be followed. We have issued a notification." Petitions are seeking the judicial review of this particular notification.
The Karnataka Hijab row has reached other institutions and other parts of the state. Students wearing saffron scarves raised slogans against Muslim girls at the Mahatma Gandhi Memorial College (MGM) in Udupi district. In other parts, Jai Shri Ram chants by students wearing saffron scarves were also heard. A burka clad Muslim girl shouted “Allah hu Akbar”at a college in Udupi district, when she was pursued by a saffron scarf clad student mob, shouting “Jai Shri Ram”. I wonder if both sides realised that they were only hailing God in their own way! Nothing wrong in that except the situation of the mob in pursuit of a single Muslim girl was scary. “Allah hu Akbar” means God is great and similarly “Jai Shri Ram” would mean that God Shri Ram be hailed, a matter of individual faith and belief!! The burka clad student identified as Muskan, who shouted 'Allah hu Akbar' in response to chants of 'Jai Shri Ram' by those heckling her. She said, “I was going to college to submit an assignment. There were some people who were not allowing me to enter the college because I was wearing a burqa. They were asking me to remove burqa and then go inside," (India Today). The school authorities intervened to keep hackling students away from her. The Principal of the college declared a holiday till further notice.
The Karnataka HC has begun hearing the petitions seeking to allow students to enter colleges and schools wearing hijab. Justice Krishna Dixit started the proceedings by saying, “We will go by reason, by law, not by passion or emotions. We will go by what the Constitution say”
The hearing of the petitions was underway in Karnataka High Court when incidents of stone pelting were reported from Bagalkot, Davangete and Shimoga. Police resorted to lathi charge to disperse the crowd and imposed section 144 to maintain law and order.
Let us see what the Qur'an mandate. Women and men, both are to dress in a modest manner. The clearest verse on this mandate of modest dress is Surah 24:31, telling women to guard their genitalia and draw their khimār (covering) over their bosoms. Another verse goes as under:
O prophet, tell your wives,
your daughters, and
the wives of the believers
that they shall lengthen
Thus, they will be recognized
(as righteous women)
and avoid being insulted.
GOD is Forgiver, Most Merciful.
Let us see how wearing of hijab performs as the touchstone of being a religious practice in India. “Religious practices or performances of acts in pursuance of religious belief are as much a part of religion as faith or belief in a particular doctrine. Thus, if the tenets of the Jain or the Parsi religion lay down that certain rites and ceremonies are to be performed at certain times and in a particular manner, it cannot be said that these are secular activities partaking or commercial or economic character simply because they involve expenditure of money or employment of priests or the use of marketable commodities. No outside authority has any right to say that these are not essential parts of religion, and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate." (W.P.(C).No.6813/2016). Earlier In A.S Narayana Deeshitulu Vs State of A.P and others [1996 (9 ) S.C.C 548], it was held as follows:
"Essential or integral part of religion to be ascertained from the doctrine of that religion itself according to its tenets, historical backgrounds and change in evolved process and only integral or essential part of religion is protected.
It was further held as follows:
"The religious freedom guaranteed by Articles 25 and 26, therefore, is intended to be a guide to a community life and ordain every religion to act according to its cultural and social demands to establish an egalitarian social order. The protection of Articles 25 and 26 of the Constitution is not limited to matters of doctrine. They also extend to acts done in furtherance of religion and, therefore, they contain a guarantee for rituals and observances, ceremonies and modes of worships which are integral parts of the religion. Articles 25 and 26, therefore, strike a balance between the rigidity of right to religious belief and faith and their intrinsic restrictions in matters of religion, religious beliefs and religious practices and guaranteed freedom of conscience to commune with his Cosmos, Creator and realize his spiritual self." W.P.(C). No. 6813/2016.
In dealing with the question of freedom of religious practices, the Courts have dwelled on to find such practices are essential to maintain the identity of a person to profess his faith in the religion he or she practices and if not allowed, whether it would result in the wrath of the injunctions of the religious doctrine he or she professes. One of the salient features of the religious tenets is the moral obligations that one has to carry in formulating his or her conduct, in obedience to the command of the superior power in like manner his or her conduct has to be conducive to become obedient to the legal obligation or legal duty under the temporal law. This moral obligation cannot be allowed to be interpolated by outside ethos. If the religious tenets do not allow a woman to become a priest, the State cannot import secular ethos of gender equality to allow a woman to be appointed as a priest. If it is allowed, the constitutional protection will become void and hollow. The Hon'ble Supreme Court in Commissioner of Police and others v. Acharya Jagadishwarananda Avadhuta and another [AIR 2004 SC 2984] held as follows:
"What is meant by an essential part or practices of a religion' is now the matter for elucidation. Essential part of a religion means the core beliefs upon which a religion is founded” wearing of hijab is one such belief.
Essential practice means those practices that are fundamental to following of a religious belief. It is upon the cornerstone of essential parts or practices the superstructure of religion is built, without which, a religion will be no religion. Test to determine whether a part or practice is essential to the religion is - to find out whether the nature of religion will be changed without that part or practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its behalf, then such part could be treated as an essential or integral part. There cannot be additions or substractions to such part. Because it is the very essence of what religion and alterations will change its fundamental character. It is such permanent essential part is what is protected by the Constitution. No body can say that essential part or practice of one's religion has changed from a particular date or by an event. Such alterable parts or practices are definitely not the 'core' of religion where the belief is based and religion is founded upon. It could only be treated as mere embellishments to the non-essential part of the religious practices."
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. In that matter, the High Court opined:
“Thus the religious practice cannot be tested on the secular thoughts or any other consideration outside the religious authority. The personal law is not law within the meaning of expression "law" under article 13(1) of the Constitution. Thus, it is immune from the challenge based on constitutional parameters (the State of Bombay v Narasu Appa Mai [A.I.R (39) 1952 Bombay 84]}.
The enabling power of the State is limited to the areas referred under Article 25(2) (a) & (b) of the constitution, guaranteeing religious freedom. However, nothing prevents the States or the Courts from examining the true nature of the essential religious practice ad was held in W.P.(C).No.6813/2016 that it is open for the State to regulate or make laws consistent with the essential practice of a religion. However, while making a regulation or a law, the true import of the essential practice shall not be supplanted by the state.
The Article 25(1) couches a negative liberty ensuring "free from interference or obstacle" in practicing the essential part of a religion, except in situations as referred in the said Article.
According to the political scientist, Thomas Hobbes "A freeman is he, that in those things, which by his strength and wit he is able to do, is not hindered to do what he has the will to do" ( Leviathan Chapter 21 of the liberty of subjects) Isaiah Berlin says in his 1958 lecture, “Two Concepts of Liberty" refers to negative liberty as follows:
"Liberty in the negative sense involves an answer to the question: 'What is the area within which the subject, a person should be left to do or be what he is able to do or be, without interference by other persons."
The fallout of the above is as follows:
“i. The fundamental right of freedom to practice religion is protected to the extent to practice essential part of the religion, subject to the restrictions enumerated under Articles 25(1) and 26.
ii. There is no fundamental right conferred on any person about practice of non-essential part of a religion. Therefore, the State is competent to curb or regulate or interfere with the non-essential part of the religious practices on any reasonable ground.
iii. The State is competent to make laws in areas referred under Article 25(2)(a) & (b) and also to make laws consistent with the essential part of the religious practice (W.P.(C).No.6813/2016).
The main issue in this writ petition about the dress code; it is to be noted Islam embrace and encompass guidance to dress code for believers. In the event of infringement of the dress code, punishment is referred in the Hadiths as follows:
"Fudhalah bin Ubaid reported that the Messenger of Allah (s) said.
Three people about whose evil fate you should not fjeel sorry: a man who disassociates himself from the Muslim Ummah, disobeys his Imam (the ruler of the Muslim Ummah), and dies in that state; a slave who runs away from his master and dies before returning to him; a woman whose husband goes away after having provided her with provisions but she displays her beauty, in tabar-ruj during his absence. So do not be concerned about them. The jilbab must conceal the underclothes. Such requirement applies to the garment a Muslim woman should wear for Salah as well. He said. (W.P.(C).No. 6813/2016).
It may be of interest that around January 29, the Kerala government issued an order in the matter of student police cadets saying that hijab, other religious symbols could affect secular nature of a Student Police Cadet, therefore it cannot be part of uniform, hence hijab wearing will have to shunned by the aspiring candidates.
The hijab garment has different legal and cultural connotation in various countries. In the province of Aceh in Indonesia, Muslim women are required to wear the hijab and all women are required to do so in Iran and Afghanistan.
France banned overt religious symbols, including many religious head coverings in 2005, in public schools and government buildings. In 2009 Kosovo, Azerbaijan in 2010, Tunisia partially lifted in 1981, and Turkey has been gradually lifting since are the countries who have banned the burqa in public schools and universities or government buildings, inspite of being Muslim majority countries. Syria and Egypt banned face veils in universities from July 2010 and 2015 respectively. In Lebanon, Morocco Tunisia, there are complaints of restriction or discrimination against women who wear hijab. Hijabon these countries, infested with unsettled political regimes and infested with terrorism, hijab is seen as a symbol of fundamentalism or sign of political Islam, when the government there claims to be secular. It can’t be denied that various head dresses worn by Muslim women is a symbol of identity and presence of Islam in European countries. At many places, adherence to hijab has been a cause for controversy and consideration for legal ban. Laws have been passed in France and Belgium to ban face-covering clothing, popularly described as the "burqa ban", although it does not only apply to the Afghan-model kind of Burqa. Other countries are debating similar legislation, some have limited prohibitions. Face covering clothing such as the burqa or veil.
Most Muslims in Western Europe are of immigrants and the issue of Islamic dress is linked with issues of immigration and recognition of Islam in Western Europe.
We need to understand the difference between hijab and burqa. One is only a head covering, the other covers almost the whole body. There are currently 16 countries, out of 195 that have banned the burqa: Tunisia, Austria, Denmark, France, Belgium, Tajakistan, Bulgaria, Cameroon, Chod, Congo- Brazzaville, Gabon, Netherlands, China (in Xinjiang region), Morocco, Shri Lanka and Switzerland. Hijab is also banned in Russia. In 2012, in some Russian cities of Russia, a ban on hijab in schools or colleges was imposed. On approaching the Supreme Court, ban on wearing hijab was upheld. Most of these countries are familiar with singular cultural paradime. In the case of India, we are have rich history of cultural and religious diversity and we believe in unity in diversity. Our constitution also recognizes diversity. It is a huge big country and every region has its own food, language, clothing, cultural and religious practices. No other country can match its unimaginable wide compass of its unity in diversity. We have to preserve it. Ours is a unique country and this marvel of diversity is our wealth, a social capital. We all are duty bound to protect it. It is now that the western world is tasing diversity due to immigrant population, which they grant permission to come for humanitarian considerations or to overcome their guilt of having exploited their natural resources during their occupation before the Second World War. Some countries need manual labour, which their own population is reluctant to perform and immigrants are willing to do it to survive after having escaped from their oppressive regimes. Immigrant population is expected to assimilate and integrate with the cultural ethos and values of the host countries. This has taken a toll on some immigrants in hijab wearing. After France banned the veil and burqa in 2005, a prominent Iranian woman immigrant, who fled the 1979 cultural revolution to Paris and obtained political asylum told me at a conference that Burqa was a great protector of woman’s confidence, even if she was not economically well off to wear latest fashionable clothing because under the Burqa, nobody can judge her economic well being. Now we have lost that kind of confidence building protection. I wonder if that is also a consideration for wearing the burqa else where than European countries. There are genuinely religiously inclined women who like to wear as ordained. In northern parts of India, especially in Punjab, chadhar is preferred than the burqa. My own mother always kept her head covered with her dupatta even while sleeping, I suppose more as a matter of habit and without which she did not feel comfortable.
After the demise of Zia-ul-Haq, Benazir Bhutto became the first woman prime minister in December 1988, a fatwa from the grand Mufti of Saudi Arabia stated that a woman can not be head of an Islamic state. Amongst many other reasons, non-wearing of hijab, was also cited. How diplomacy played its role is a matter of record and the fatwa was ultimately withdrawn. Thereafter, we always saw Benazir adorning a dupatta on the half part of her head as a sort of scarf. Before coming to active politics, that was not her style. Those who knew her as Pinki while she was studying in England, could not miss her flair for latest fashions as they came out in Paris fashion shows. In any case elitists of Pakistan rarely cared for such religious practices. When President Zia-ul-Haq rolled out the process of Islamization in Pakistan in 1980 after Soviet invasion of Afghanistan and he wanted to establish the Islamic regime and to impress upon the fleeing Afghan refugees that he will protect their religious beliefs, he ordered wearing of the hijab compulsory. A TV anchor had to forfeit her job for defying the mandate. Women in villages were seen working in the frills with their lower garments up till the knees but covering fervently their heads with the chadhers (shawl). Recently I saw Justice Aysha Mallik taking oath of office as the first woman judge the Supreme Court of Pakistan with no hijab as such. On the other hand, the current wife of Imran Khan, the prime Minister of Pakistan adorns a white long toe to head burqa (as worn in Afghanistan). It is not only a question of different interpretation of religious beliefs but also a matter of personal choice and freedom, which needs to be respected and also protected.
Prime Minister of Bangladesh have been women for many years. Both Sheikh Hasina and Khalida Zia have always covered their heads with their sarees, though no separate cloth for covering their heads is adorned by them.
Megawati Sukarnoputri, the former President of Indonesia never adorned hijab as can be seen from her various photographs. Indonesia was a Buddhist country before becoming Islamic.
Various politicians are making comments both for and against the the hijab. The education of the students is being harmed. Due to COVID, they have already lost two years of their educational life. One hopes and prays for an early solution. Someone suggested that if these students insist on wearing the hijab, they should go to the Madarsas. That is no solution. Education is a fundamental right of every citizen of this country and to receive it at a place of his or her choice, as long as they fulfill the eligibility criteria. Not wearing hijab was not the criteria at the time of admission to the installation.
Wearing of hijab should not hurt anyone else. May be the colour of the hijab can match with the colour of the uniform. It is a choice the person concerned if she feels comfortable and confident. It is a Muslim religious practice born out of usage of the mandate for centuries. The state needs to make investment of educational resources to make them understand its policies and values if different. To force students to do what they feel strongly about being a part of their religious practice is a violation of their right to life and to live with the dignity defined by them. Let their dignity not be compromised and education not interrupted. Ameen (tathastu).
(The writer is a practicing advocate of the Supreme Court)