The Hijab Row | Gist of Rajya Sabha TV / RSTV (now Sansad TV) - UPSC PDF Download

Context

• Karnataka is witnessing a huge uproar over the insistence of some Muslim girls to wear hijab in schools and colleges.
• The Hijab row started in December end when a few students started coming to a government pre-university college in Udupi wearing Hijab. To protest against it, some Hindu students turned up wearing saffron scarves.
• The controversy erupted after a college in Udupi refused permission to Muslim girls for wearing hijab in classrooms citing the dress code that was in effect for students.
• As a precautionary measure, the police imposed prohibitory orders near campuses.
• In an interim order the Karnataka HC had restrained students — regardless of their religion or faith — from wearing saffron shawls, scarves, hijab and religious flags in classrooms until further notice.

Legal Scenario

• Article 25(1) of the Constitution guarantees the “freedom of conscience and the right freely to profess, practise and propagate religion”. However, like all fundamental rights, the state can restrict the right for grounds of public order, decency, morality, health and other state interests.
• Bijoe Emmanuel vs. State of Kerala (1986) pertained to three children belonging to the Jehovah’s Witnesses sect refusing to sing the national anthem during the morning assembly. The Supreme Court ruled in the students’ favour, holding that their expulsion violated their freedom of expression under Article 19(1)(a) as well as their right to freely practise and profess their faith under Article 25(1).
• The test is to find out whether a student who asserts religious freedom for a course of action that the authorities find objectionable genuinely and conscientiously holds that belief or not. Such a belief is constitutionally protected.
• As for the wearing of hijab, the students are relying on a Kerala High Court judgment that had in 2016 allowed two Muslim students to take the All India Pre-medical Test while wearing a hijab, after holding that it was an essential part of Islam. In a different case, the Kerala High Court declined to intervene in favour of a Muslim student who was not allowed to wear a head-scarf by a school.

How To Do Draw The Line Between Matters of Religion And Matters Other Than Religion?

• The ‘essential practice’ doctrine can be traced to a 1954 decision of the Supreme Court in Commissioner, Hindu Religious and Charitable Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, commonly known as the ‘Shirur Mutt’ case.
• This litigation involved action sought to be taken by the Madras government against a mutt over some disputes over the handling of financial affairs.
• The madathipathi’s contention was that the Government could not interfere in the mutt’s right to manage its own affairs under Article 26. Under this Article, what was protected was the right “to manage its own affairs in matters of religion”.
• It was in this context that the court said: “In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.”
• However, this attempt to differentiate what essentially distinguishes a religious matter from other matters was taken up in subsequent judgments to mean that courts are required to distil the essence of a religion to see whether a particular practice or act fell under the category of religion or not.
• Hence, some acts obtained constitutional protection by being declared “essential” to the practice of that religion and some were denied protection on the ground that they were not essential to it.
• In several instances, the court has applied the test to keep certain practices out. In a 2004 ruling, the Supreme Court held that the Ananda Marga sect had no fundamental right to perform Tandava dance in public streets, since it did not constitute an essential religious practice of the sect.

Issues For Court

• Is the denial of entry a violation of their freedom of conscience and freedom to practise their religion under Article 25?
• Government is of the view that compelling a student to remove the head-scarf is not a violation of Article 25.
• Whether the wearing of head-scarves will have an adverse impact on law and order by pitting two communities against one another, and thereby, enable the Government to prohibit religious attire in the interest of public order – one of the grounds on which a right under Article 25 can be curbed.
• Whether the ban on such attire will come within the power to restrict freedom of religion in the interest of public order, health and morality.
• From the Muslim students’ point of view, they have a fundamental right to wear a hijab as part of their right to practise their religion.

Criticism of Essential Practice Test

• The first criticism is that it was never intended to be a test to find out if a particular practice is essential to the practice of the religion, but was only made to distinguish a matter of religion from a matter other than religion. However, a long line of judicial decisions seem to endorse the applying of this test to dispose of cases.
• The second criticism is that the doctrine of essentiality appears to allow courts to go deeply into the scriptures and tenets of a religion or a religious denomination to find out if the practice or norm that is at the heart of the issue is essential. This is seen as a theological or ecclesiastical exercise, which courts are forced to wade into.

Uniform Civil Code

• A generic set of governing laws for every citizen without taking into consideration the religion.
• Article 44 of the Constitution says that there should be a Uniform Civil Code. According to this article, “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India”. Since the Directive Principles are only guidelines, it is not mandatory to use them.

India needs a Uniform Civil Code for the following reasons

• A secular republic needs a common law for all citizens rather than differentiated rules based on religious practices.
• The rights of women are usually limited under religious law, be it Hindu or Muslim. Many practices governed by religious tradition are at odds with the fundamental rights guaranteed in the Indian Constitution.
• Courts have also often said in their judgements that the government should move towards a uniform civil code including the judgement in the Shah Bano case.

Why is UCC not desirable at this point?

• Secularism cannot contradict the plurality prevalent in the country.
• Cultural diversity cannot be compromised to the extent that our urge for uniformity itself becomes a reason for threat to the territorial integrity of the nation.

Way Forward

• A more reasonable approach will be to apply the test of constitutional morality and legitimacy to the issue at hand.
• Applying the principles of equality, dignity and civil rights to a particular practice may be better to decide the constitutionality of a practice than a theological enquiry.
• Court should pay attention to Justice R.F. Nariman’s dictum in the Sabarimala review which says, that the “holy book” of India is the Constitution of India.
• In the hijab case, the courts should protect an essential religious practice in a manner that is consistent with imparting education in an orderly fashion.
• Each institution has a set of rules and regulations, norms and values. In a school or college, religious identity should not be the defining identity.
• It’s high time that the government steps in and calms the waters and it’s time to wake up if this government wants India to make the “Vishwa Guru.”