FREEDOM OF RELIGION AND ATTIRE

Karnataka's Hijab Row

A month after female students wearing hijab were barred from entering the government college in Karnataka’s Udupi, more Muslims are being denied entry at Kundapur’s Pre-university college. This comes after male students of Bhandarkar’s college wearing saffron shawls – a symbol of Hinduism as portrayed by Hindutva outfits protested against Muslim students wearing hijab. With the issue snowballing into a major controversy, the opposition is supporting the fundamental rights of Muslim girls. Meanwhile, a stand-off between saffron shawl-wearing students and  Hijab-wearing students was reported outside a private college in Kundapura town. Karnataka's Hijab Row

                A similar situation was reported at Bhandarkar’s college where girls took out a march wearing saffron shawl during a protest against Hijab. They threaten to wear a saffron shawl till Hijab is not allowed.

Nearly a month ago, six girls were barred from entering their classroom wearing the hijab at a government PU College in Udupi, who in protest sat outside college over being denied entry. One of the protesting students has approached the Karnataka High Court and sought relief. While the rest of students have claimed that their fundamental rights are being violated with the college development committee stopping them from wearing the hijab inside the classroom. The issue has thrown up legal questions on reading the freedom of religion and whether the right to wear a hijab is constitutional protected.

Article 25(1) of the Constitution guarantees the “freedom of conscience and the right freely to profess, practise and propagate religion”. It is a right that guarantees a negative liberty — which means that the state shall ensure that there is no interference or obstacle to exercise this freedom. However, like all fundamental rights, the state can restrict the right for grounds of public order, decency, morality, health and other state interests. Over the years, the Supreme Court has evolved a practical test of sorts to determine what religious practices can be constitutionally protected and what can be ignored. In 1954, the Supreme Court held in the Shirur Mutt case that the term “religion” will cover all rituals and practices “integral” to a religion. The test to determine what is integral is termed the “essential religious practices” test. “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,”. So, the test, a judicial determination of religious practices, has often been criticised by legal experts as it pushes the court to delve into theological spaces. In criticism of the test, scholars agree that it is better for the court to prohibit religious practices for public order rather than determine what is so essential to a religion that it needs to be protected. In several instances, the court has applied the test to keep certain practices out.

The hijab discussion has been put to courts on several occasion, two set of rulings of the Kerala High Court, particularly on the right of Muslim women to dress according to the tenets of Islam, throw up conflicting answers. On the issue of a uniform by a school, another Bench of the Kerala High Court held that the collective rights of an institution would be given primacy over the individual rights of the petitioner. The case involved two girls, aged 12 and 8, represented by their father who wanted his daughters to wear the headscarf as well as full-sleeved shirt. However, the division Bench dismissed the appeals as it was ‘’submitted that the appellants-petitioners are not now attending the School and are no more in the rolls of the respondent-School.’’ In 2015, another single Judge of Kerala HC allowed two Muslim girl students to wear Hijab and full sleeve dress while appearing for the CBSE All-India Pre-Medical Entrance Test. In the wake of the hijab row, the Karnataka government has asked educational institutions to follow existing uniform-related rules, until the High Court comes out with an order in this regard, next week.