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Right To Wear Hijab To Schools - Constitutional Right

The row over whether educational institution missions can impose a strict dress code that could interfere with rights of students has failed to other colleges in Karnataka after six students were banned from entering a college in Udupi for wearing a hijab. The issue has thrown up legal questions on reading the freedom of religion and whether the right to wear a hijab is constitutionally protected. CONSTITUTIONAL PROVISIONS
  • Article 25: Article 25(1) of the constitution, guarantees the freedom of conscience and the right freely to profess, practise and propagate religion.
  • Negative liberty: Right to freedom of religion guarantees a negative liberty i.e. the state shall ensure that there is no interference or obstacle to exercise this freedom.
  • Reasonable restrictions: the state can restrict the right for grounds of public order, decency, morality, health and other state interests like all other fundamental rights.
Supreme Court says The Constitution provides everyone with the power to practice and propagate ones religion. As long as it does not interfere, or degrade other persons’ religion, everyone is at absolute freedom. The freedom to practice one’s religion is a fundamental right granted by India’s constitution, with certain limitations. Article 25(1) of the Constitution says that there is a “Freedom of conscience and the right to freely profess, practise, and propagate religion.” But like any other fundamental right, this also is not fixed. It can be regulated on basis of other fundamental rights granted by the Constitution. Over the years, the Supreme Court has ruled that the Constitution will exclusively protect “essential religious practices.” Before granting any protections courts will evaluate whether a practise is vital or integral for religion, after studying religious texts and consulting the experts and religious heads. Courts will also consider the reasonableness of the restrictive measure in question while determining the legitimacy of any restriction put on basic rights under the provision of Article 14 (right to equality) Even in 2016, when All India Institutes of Medical Sciences (AIIMS) forbade hijab-wearing aspirants from appearing in the entrance exam, the Kerala High Court ruled that students might take the exam while wearing the hijab because it was an essential practice of the aspirants’ religious faith. India’s national and social life has been accommodative of all religious beliefs and practices. Public expression of religiosity and the use of marks of religion abound in public spaces and institutions in the country. The wearing of the hijab cannot be treated differently from the wearing of the mangalsutra, bindis, bangles, the cross or other commonly worn religious symbols. Essential Religious Practices Test
  • The test to determine what is integral is termed the essential religious practices test.
  • The Supreme Court in Shirur Mutt Case held that what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.
  • Hence, the judicial determination of religious practices has often been criticized by legal experts as it pushes the court to delve into theological spaces.
    • The scholars agree that it is better for the courts to prohibit religious practices for public order rather than determining the practices essential to a religion which need to be protected.
  • The court has applied The test in several instances to keep certain practices out, for instance it was held by the Supreme Court that the Ananda Marg sect had no fundamental right to perform Tandava dance in public streets in its 2004 ruling based on the fact that it did not constitute an essential religious practice of the sect.
  • The court has applied the test to individual freedoms also while these issues are largely understood to be community-based.
    • For instance, the Supreme Court in 2016 upheld the discharge of Muslim airmen from the Indian Air Force for keeping a beard. The case of Muslim airmen was distinguished from Sikhs who are allowed to keep a beard.
    • According to Regulation 425 of the Armed Force Regulations, 1964, the growth of hair by Armed Forces personnel is prohibited , except for personnel whose religion prohibits the cutting of hair or shaving of face.
    • The court essentially held that keeping a beard was not an essential part of Islamic practices.

What is hijab?

Hijab is a kind of headscarf worn by Muslim women as a mark of faith and respect to their religion. It covers most of the hair, the neck and the upper chest area by falling below the level of the shoulders. It is not just a piece of clothing but a sign of modesty as well. It is the most important and respected aspect among Muslim women. Hijab is an essential component like many other practises of Islam. Hijab is one of the identifications of Muslims and that is empowering.
Right to freedom of religion in the constitution Article 25 to Article 28 of the Indian Constitution provides for the fundamental right to freedom of religion. First of all, Article 25 which gives freedom to all citizens of conscience and freely profess, practice and propagate religion. But this is not complete freedom, there are conditions on it. Article 25 (A) states – The State may impose restrictions on this right in the interest of public order, morality, health and other interests of the State. The constitution has recognized the wearing and carrying of kirpan as an integral part of Sikhism. Article 26 talks about the freedom to manage religious affairs. Under this, people of every religion have the right to conduct religious activities, establish, run religious institutions, etc., while living within the ambit of public order, morality and health. Article 27 provides that no person shall be compelled to pay any such tax if he is promoting a particular religion. According to Article 28, religious education cannot be imparted in any educational institution which is run entirely on the funds of the government. Religious education can be given with the consent of the people in the institutions recognized by the states (like madrassa, Sanskrit school etc.) but these education should be according to the syllabus prescribed by the government. Ruling of courts on issue oh hijab
  • The Kerala Court has ruled in the past regarding the issue of hijab in the case challenging the prescription of dress code for all India Pre Medical Entrance test.
    • The court held that, if the invigilator requires a headscarf to be removed and examined, the petitioner shall also subject themselves to that by the other authorized person.
    • It was also held that, it is desirable that the CBSE issue general instructions to its invigilators to ensure that religious sentiments are not hurt and at the same time discipline is also not compromised.
  • In Amna Bint Basheer v Central Board of Secondary Education (2016), The Kerala High Court once again allowed for the additional measures and safeguards to be put in place.
  • Both these cases involve restrictions placed on the freedom of religion for a specific purpose i.e. to ensure a fair examination process.
  • In Fathima Tasneem v State of Kerala (2018), on the issue of a uniform prescribed by the school, a single bench of the Kerala High Court held that collective rights of an institution would be given primacy over individual rights of the petitioner.
Secularism
  • The word secular refers to things which are not religious or spiritual. The concept of being ‘secular’ was first used in Europe where the church had complete control over all types of properties and nobody could use property without the consent of the church.
  • Some intellectuals raised their voice against this practice, these people came to be known as secular which meant separate from church or against church.
  • The Constitution of independent India provided that India would remain secular which meant that:
    • Each citizen would be guaranteed full freedom to practice and preach his or her religion.
    • State will have no religion.
    • All citizens, irrespective of their religious faith will be equal.
India is not, say, France, where not only is the idea of secularism based on the constitutional principle of 'laicite' by which all religious symbols and practices are kept outside public affairs, but where the hijab also remains a symbol of the 'outsider'. In India, secularism is constitutionally based on equal treatment of all religions under Article 25(1), which the Karnataka government insists it has not violated. Legally, it stands on weak ground - a 2017 Kerala High Court verdict and a 2018 Bombay High Court judgment allowed candidates and a student to wear the headscarf while appearing for an entrance exam and attending lectures, respectively. What is ironic is that being concerned about the hijab - as attire that, according to the Karnataka government, 'disturb[s] equality, integrity and public law and order' - is more of a 'western problem' where hijabs, turbans and caste marks are somehow seen as threatening the social fabric.


POSTED ON 06-02-2022 BY ADMIN
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