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Hijab or No Hijab : A fundamental question

Written by: 1) Aditya Sharma, 2) Abhishek, 3) Anvesha Agarwal, 4) Aadya Sonja, 5) Arushi Gupta and 6) Ayushmaan Choukse




Introduction


The concept of religion, in one or another form, has been prevalent in every part of the world since time immemorial. It is so deeply rooted in individuals that we see conflicts over religion now and then. It is based on the feeling that one’s religion and religious ideology are better than others.


In a country such as India, where secularism is guarded against in our very constitution, we must see all religions as equals and create a society where every person irrespective of their religious identity lives together as “Indians”.


Referring to this vision of our country, certain schools in Karnataka were recently seen denying entry in schools to girls wearing a hijab. To fully understand the issue here, we need to first understand what the hijab is and what value it holds for the Muslim community.


Surah no. 24, verse- 31 of the Quran states that women should cover their head using a piece of cloth, extending to the chest region to cover their body from men outside their family. Surah 33 and verse 59, state that a larger outer cloth, “Jilbab” should cover the head and chest region so that they are not molested.


As soon as these girls were denied entry, the entire state was swamped with protests relating to the right to practice one’s religion. So the question here is whether this ban restricts this right or not and whether it is important to impose such a ban.


The answer to the first question lies in the fact that there is no mention in the Quran of the hijab being an essential or non-essential part of religious practices. However, we can categorize it as non-essential by referring to the three sins mentioned in the Quran:

1. Haram- Absolute sin

2. Macru- Objectionable things (close to sin)

3. All other things which are questionable but aren't considered a sin


The wearing of a hijab falls under the 3rd category from which we can infer that the banning of hijab in schools does not in any way restrict the right to religion of these women.


It should also be noted that some people wear burqa while going to Mecca for Hajj, some don't because it is just about beliefs and educational centers should be aloof and governed only by the rules which are best for the proper functioning of a place of education.


One of the religious practices in Islam includes praying to the Almighty, thanking him for all the prosperity in the world and praying for the end of all evils. Every follower of Islam goes to pray on Friday which is also known as “Juma”.


But as we have seen, schools do not grant special permission to the Muslim students to go home midday on Fridays or take an off. Such a buffer is not provided by institutions because beliefs are supposed to be followed outside the institution, in a private space.


Analysis


The hijab issue started in Udupi, one of the districts of Karnataka, where some Muslim girls were denied entry into the premise of a college on the ground that they were wearing a hijab. Due to this, girls started protesting against the government of Karnataka as they wanted entry into the college with hijab and they filed a case in the Karnataka High Court, considering that their fundamental right was violated by the college.


The issue didn’t end here; Muslim girls wanted to wear Hijab and on the other hand, Some Hindus also wanted to wear Saffron scarfs to symbolize religion. One of the important questions is whether girls with hijabs should be allowed in educational institutes or not. Muslim girls want to wear the Hijab as they consider it an essential practice in Islam but argue about it and say that educational institutions are not a place where students should be allowed to practice their religious beliefs. In the government’s point, everyone is equal, whether belonging to a diverse religion or belonging from a different caste or class, so it wants uniformity, therefore, puts forth the point that every student shall wear a uniform in educational institutions, to avoid ambiguity.


The concept of uniform was started in the society because there were arising conflicts between higher class and lower class and since India is a diverse country our founders implemented this concept long ago to avoid any such future conflict.


The Karnataka Education Act 1983 is one of the important acts in this case as it gives powers to the state government to give directions to the educational institutions to smoothen their functioning of the educational institutions. The Purpose of the act was to provide better education, facilities, and discipline in educational institutions. In 2013, the Karnataka Government issued certain guidelines to the educational institutions that there should be a compulsory uniform/dress code in schools and colleges. In these guidelines, they mentioned that a Hijab or any type of scarf is not a part of a uniform. The practice of religion in an educational institution is not a violation of the Right to Freedom of Religion as the School or college is not the place where one should practice it, rather should focus on studies, without wearing any religious or caste-based specs.


Even in the Case of Fathima Hussain Syed Vs. Bharat Education Society (2008) [1], the Bombay high court turned down a girl student’s plea for wearing a headscarf in a private school in violation of the dress code. The HC held:

“A girl student not wearing the headscarf or head covering while studying in exclusive girls’ section cannot be said to be in any manner acting inconsistent with the aforesaid verse 31 (of Quran) or violating any injunction provided in Holy Quran. It is not an obligatory overt act enjoined by the Muslim religion that a girl studying in the all-girl section must wear a head covering. The essence of the Muslim religion or Islam cannot be said to have been interfered with by directing petitioner not to wear a headscarf in the school.”


In another case, Fathima Thasneem vs. State of Kerala [2], the two girls were not allowed to wear full sleeved shirts and a headscarf as it was against the prescribed dress code. The court also said that “collective right of the school must be given primacy over the individual right of the student.”


As prescribed for other constitutional and legal rights, there are always reasonable restrictions which are accompanied by them, and so is the case with constitutional rights given under article 25 to article 28, all relating to religious matters. These articles are:


Article 25: “Freedom of conscience and free profession, practice and propagation of religion.—(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion. (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law— (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Explanation I.—The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. Explanation II.—In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jain or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.”[3]


Article 26: “Freedom to manage religious affairs.—Subject to public order, morality and health, every religious denomination or any section thereof shall have the right— 46 (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law.”[4]


Article 27: “Freedom as to payment of taxes for promotion of any particular religion.—No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.”[5]


Article 28: “ Freedom as to attendance at religious instruction or religious worship in certain educational institutions.—(1) No religious instruction shall be provided in any educational institution wholly maintained out of State funds. (2) Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution. (3) No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.”[6]


All of the aforesaid rights are bound within the reasonable restrictions imposed by the state and Law. These restrictions are based on the foundational grounds of public order, morality, health, relation with nations and any other reasonable ground that which state considers of such a nature to disturb the peace in the society. In the current case also, the restrictions are imposed keeping in mind the above aforesaid facts. The state has an undeniable duty to ensure that no individual’s rights are violated.


In the case of, State of Karnataka (hereafter referred as state) has not completely banned the usage of the hijab all over the state, rather it has just restricted its use of it in educational institutions, being equality taken into consideration. Education is a fundamental resource and right of every human being who has taken birth on this Earth. Education is the most vital ingredient for any society’s growth. Denying education to even one individual will defeat the purpose of any society, as it won’t grow. So far we can conclude that education is for all and shall not be denied.


Our constitution empowers every state to make laws for religious affairs. However, fulfilling the requirements of the constitution. This right of state was also upheld in the judgement of Ratilal Panachand Gandhi vs. the State of Bombay and others (1954) [7], where the hon’ble courts held that every citizen has a right to practice and propagate any religion of their choice. In this judgement only at a later stage, it was also opined by the hon’ble supreme court that the state has the authority to make laws for religious affairs, however, not to curb religious practices.


The above-mentioned judgement also favours the ‘essentiality test’ which was later clarified by the hon’ble supreme court in the case of Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954) [8]. In the mentioned judgement court established a ground for determining the essentiality of a certain practice in a religion, which was named as ‘essentiality test’. The hon’ble court in their judgement ruled that it doesn’t matter to restrict a certain religious practice which is essential to the religion until it is not an ‘integral’ part of the religion. For example, in Sikh religion wearing turbans is an essential as well as an integral part of the religion but in Islam wearing hijab is clearly expressed as an optional practice. Another example which we can take into consideration is that in the Hindu religion It is always an observed practice that Brahmins put a ‘Tilak’ on their forehead, but it is an optional practise and not an essential as well as integral practice.


Conclusion


Educational institutions are the places where one goes to gain knowledge and learn. They are not the places to propagate one’s religious beliefs.


If religion is mixed with education and if we allow certain individuals to carry such things that represent some aspect of their religion, then it might ignite others to do the same, resulting in a pretty chaotic situation. As a result, it may disturb the very purpose of an educational institution which is “to gain knowledge and learn”.


Uniformity is another very important thing here. In any institution, uniformity should be maintained to instill a sense of discipline and also to ensure equality amongst all. Uniformity wipes out the differences between rich, poor, powerful, religion, caste etc. To ensure that no such differences come into picture, uniformity has to be maintained. People of every religion must follow the rules governing places of education.


Also, placing all students on a common and unbiased platform is a basic qualifying parameter for an educational institution, so that all students are given an equal opportunity to participate and grow.


Plus, attire based upon a particular religion or beliefs provides and propagates the start of barriers among the students, which prevents them to intermingle on a social basis. Students may become more judgmental and start to develop fanatical views against each other based on religion.


All these defeat the whole purpose of education and adversely affect the whole personality development process of the students as a whole.


To conclude, we can say that the ban on hijab in educational institutions in Karnataka is a reasonable restriction put upon the students.


In no way does it violates the right to freedom of religion.


FOOTNOTES :


  1. Fathima Hussain Syed Vs. Bharat Education Society, AIR 2003 Bombay, 75

  2. Fathima Thasneem vs. State of Kerala 2018 (5) KHC 906

  3. The Constitution of India, art. 25.

  4. The Constitution of India, art. 26.

  5. The Constitution of India, art. 27.

  6. The Constitution of India, art. 28.

  7. Ratilal Panachand Gandhi vs. the State of Bombay and others, 1954 SCR 1035.

  8. Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 AIR 282, SC

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