The fault lines of the Hijab verdict

Prof Satya Narayan Misra*

On 15 th  March, the Karnataka High Court decreed that wearing the hijab is not an essential practice of Islam and upheld the state government order on adhering to uniform in educational institutions. In this invidious process, which has engineered severe backlash, the court has paid no heed to arguments like ‘reasonable accommodation’, ‘test of proportionality’ and most importantly thrown to the winds the ideals of a pluralist liberal society like India. The court has observed that allowing women to wear hijabs in the class room will hinder the constitutional spirit of “positive secularism”. It also observed that as per Muslim scriptures wearing of hijab is only recommendatory and not mandatory. Further, the court has observed that it is impossible to instil scientific temper into the young minds (Article 51A (h)) as long as wearing hijab is considered religiously sacrosanct. The school regulation prescribing dresscode as one homogeneous class subserves the objective of ‘constitutional secularism’.  It also dismissed the argument of reasonable accommodation by observing that two category of girl students would bring a sense of social separateness which is not desirable. In the opinion of the court, freedom of conscience and right to religion are mutually exclusive.

The doctrine of essential religion practice was mooted by the Supreme Court in Shiru Mutt case (1954), where the court felt that it should ascertain what constitutes essential part of the religion with reference to the doctrines of that religion itself. In Dr.Faruqui vs Union of India (1994) case, the court observed that ‘a mosque is not an essential part of practice of religion for offering Namaz and prayers’. However, the defining case in this regard is COP vs Avadhuta case in 2004 when the Supreme court ruled that the Tandav dance of Anand Margis was not an essential rite of Anand Margi faith as Anand Marg was founded in 1955 while the Tandav dance was introduced in 1966. The Shayara Bano Vs Union of India in 2017 brought in a paradigm shift in the approach to the concept of essential religious practice. In a split verdict (3-2) the supreme court struck down the practice of the practice of triple Talaq as unconstitutional. Justice Joseph who gave the majority verdict quoted scriptures to bring out how triple talaq is not an essential religious practice and goes against basic tenets of Quran and thus violates the Shariat. A practice that is merely permitted or not prohibited by a religion cannot be considered an essential tenet sanctioned by the particular religion. However, the dissenting judges had observed that “religion is a matter of faith and not of logic. It is not open to a court to assert an egalitarian approach over a practice which is an integral part of religion”. Many scholars also find it uncomfortable that the court undertakes a theological study instead of the Imams. They believe that it is not the role of the court to determine true intricacies of faith.

The constitution provides in Article 25 (1) that everyone can pursue freedom conscience and have a right to profess practice and propagate religion. Further, Article 25 (2)A mandates that the State can regulate/ restrict any economic financial and political activity associated with religious practice. It may be recalled that the right to freedom of speech and expression under Art 19 (1) is not absolute but subject to reasonable restriction like public order, decency and morality under Art 19 (2). The overwhelming refrain of our Courts is that unless a certain religious activity is disrupting public order, morality and health there should be no restriction of such religious activity. In fact, the Supreme Court went a step further in Bijoe Emmanuel 1986 case where it allowed the Jehova witnesses not to participate in singing of the national anthem. To quote: to compel each pupil to join in singing of the national anthem despite his genuine and conscientious religious objection would contravene the rights guaranteed by Art 19 (1) (a) and 25 (1) of the constitution. ‘The real test of a true democracy is the ability of even an insignificant minority to find its identity under the country’s constitution’, wrote Justice Reddy.

Sadly, the Karnataka High court judgement has not taken any cognizance of such religious rights of the minority in the landmark Emmanuel Case. By rejecting the doctrine of reasonable accommodation, the court has failed to take note that in a pluralist society, a classroom must reflect social diversity without undermining the sense of equality. Further, the court has ignored the classic test of proportionality as per which the court determines ‘if the restriction imposed by the state has’ any reasonable nexus between the objective sought to be achieved and means used’. If the purpose of the uniform is to allow for no difference, every exhibition of faith in the classroom needs to be stamped out, religious marks on the foreheads of Hindus. By targeting the hijabs of Muslim women, the Court has failed to upbraid the state from its blatant act of discrimination on religious grounds (Art 15 (1)) of Muslim women. The other important issues are on what ground can govt. restrict persons for exercising their free choice on what to wear. On the face of it the state should not impose any religious authority on our lives. They must be protected from the artifice of coerced sameness. What it means to be an Indian is to feel secure and comfortable not only in our own home but when we step out, without having educators and judges dictating how we express ourselves. India’s civilizational strength is its unique jugalbandi of religious expression and liberalization . The schools and colleges should foster diversity. Our differences should not lead to social, religious separateness. Justice O Chinnapa Ready had presciently observed: “Our traditions teach tolerance, our philosophy teaches tolerance, let’s not dilute it”. By diluting the spirit of tolerance and upholding uniform as a badge of honour and uniformity, the Karnataka high court has done a disservice to the spirit of impartiality and objectivity which is expected from the guardians of fundamental rights.



*The author is a retired joint secretary in the Ministry of Defence. He can be reached through e-mail at [email protected]



DISCLAIMER: The views expressed in the article are solely those of the author and do not in any way represent the views of Sambad English.

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