This article is written by Dhaaranee Karunagaran pursuing a Certificate Course in Advanced Commercial Contract Drafting, Negotiation & Dispute Resolution. This article has been edited by Zigishu (Associate, Lawsikho).
This article has been published by Sneha Mahawar.
Table of Contents
Introduction
India, despite being a secular country, has faced a lot of religious issues and there have been many incidents where minorities have strived to overcome these incidents, but at present, we are concerned with the issue where wearing a Hijab was held to be not necessary by the Karnataka High court, which raised a lot of questions in the minds of various people, and one of the contentions or thoughts which was revolving in people’s mind after the judgment is, why is it only Hijab of Muslims and not turban of Punjabis? Does the word Secular in the Preamble only remain as documentation and will it not be practised in reality? These questions would be answered once we look into the aspects of the decision upheld by the Karnataka High court. Karnataka Highcourt has given the verdict considering 3 constitutional grounds. The first ground being wearing of Hijab is not an essential religious practice in Islam, secondly that the freedom of expression and privacy is not violated and the ban is a reasonable restriction upon the same and finally that the government order under the challenge is neutral and non-sectarian and thus there is no discrimination against the Muslim women students.
On grounds of essential religious practices
On this particular ground, the petitioners have contended that women would lose the identity of Islam if they don’t wear a hijab, if this is a case, the petitioners should have proved accordingly, but in the present case same has not been proved by the petitioners, thus concerning this, the court has upheld that on the matter of religious freedom, the state has neither insulted the practice of the religion nor it has discriminated against a particular religion and hence wearing a hijab does not fall under an essential religious practise of Islam. The analysis of the same wasn’t taken up as a religious choice of the Muslim women, rather the court has only viewed it from the point of religious compulsion., The fundamental concept of religious freedom is now put into question mark due to the same ruling.
On grounds of freedom of expression and religious practices
Currently, when we look into the issue of Freedom of expression, in the case of Nalsa vs Union of India, the court has held that dress on certain occasions is a form of symbolic representation, and the same is protected under Article19(1)(a), but the same is not upheld in the same case. Indeed the practice of wearing a hijab is a form of symbolic expression only. Usually, when the freedom of expression and privacy comes into question, the court would look into the restrictions of the same rights, when looking into the same, they could have opted for the comparatively least restrictive measure, for which something less than the ban on the practice of wearing a hijab would suffice. Now banning the same leads to a lot of questions arising in people’s minds, which would lead them to question the practices of the majority religion alone. This indirectly would affect the unity and peace among various religions and communities. The Hon’ble Supreme Court in NALSA’s judgment used the doctrine of reasonable accommodation, the doctrine of reasonable accommodation states that the state could look into accommodating a practice reasonably in such a manner in which the same would not lose its characteristics, in the present case the possibility for reasonable accommodation was very well present, which the court could have resorted to.
Grounds of non-discrimination
The present issue has been addressed by the court very briefly, only concerning the challenge of the government order stating that the same was neutral and non-sectarian and thus the same does not discriminate against any religion specifically. The present case has only used the principles of direct discrimination and did not consider the doctrine of indirect discrimination, the same doctrine has been accepted by the hon’ble supreme court long ago and it has also become a part of Indian jurisprudence. The point to be noted here is that facially neutral rules would be applied in different ways to different sectors of people, and the same was not taken into consideration while dealing with the case. In my respectful view, the failure of considering how indirect discrimination is being squarely applied to the case shall be one of the important reasons to set aside the present matter in appeal.
Freedom of conscience is not taken into consideration
In the present case, the court has not elucidated on the freedom of conscience, it is a matter of fact that, the freedom of conscience is upheld as an important subject matter when dealing with the case of religious freedom. The main judgment, of course, is the iconic Bijoe Emmanuel case, where the right of the Jehovah’s Witnesses not to participate in the singing of the national anthem was upheld. The court distinguishes Bijoe Emmanuel on two grounds. First, it argues that “conscience is by its very nature subjective. Whether the petitioners had the conscience of the kind and how they developed it is not averred in the petition with material particulars. In this case, perhaps, it may be necessary for the petitioners to spell out, perhaps in more concrete terms, the (subjective) reasons for wearing the hijab as a case of conscience – an argument that, of course, overlaps with the argument from symbolic expression. The consideration of the same would have a comparatively positive outcome in the present case.
What is the effect of religious clothes on other religions
Article 14 guarantees every person the right to equality. However, a reasonable classification can be made by the Government to achieve a specific goal. Now, take other religions. In Sikhism, there are five articles of faith, known as ‘the five K’s’, that Sikhs are commanded to wear at all times, including in educational institutions to demonstrate their religious faith. These include Kesh (uncut hair), Kara (a steel bracelet), Kanga (a wooden comb), Kuchera (cotton underwear), and Kirpan (steel sword). Wearing the five K’s is justifiably considered essential religious practice under Article 25 and thus, Sikhs are permitted to wear the five K’s in educational institutions.
Similarly, placed are Muslim women students who want to wear hijabs in educational institutions. The wearing of the hijab comes under essential religious practice under Article 25. Restricting such a practice by educational institutions on the premise of Article 19(1)(g) would have an equal effect on other religions too because both are at an equal pedestal. There seems to be no reason as to how the hijab is different from the religious clothing of other people. Thus, it seems that if the wearing of hijabs by Muslim women students is restricted, it would affect other religions, more specifically Sikhism.
Comparison to international judgments
There were similar controversies that were raised in European courts of Human rights regarding the veils(Burqa) in Belgium and France. The veil is something that covers the face fully and thus the case was in front of ECHR and the case and ECHR upheld the ban of the same, but in the present case, the Hijab is a piece of cloth that covers the head and hair alone and not the whole face, thus the doctrine of the international court is not applicable here.
The judgments of other courts in India
Since the Karnataka Court has upheld the ban on Hijab recently, the other states in the country have not done the same. In 2016 in the AIPMT exam, the Kerala High court held that the students appearing for the exam with religious clothes should be present an hour before the exam so that they shall be checked properly as per the guidelines. Thus, when there are alternative measures that could be taken, the imposition of a ban on the same thing gives rise to a lot of misunderstandings between members of different states.
Conclusion
Now, the present judgment has been appealed in the Hon’ble Supreme Court, the decision of the Supreme court in this particular matter will be of extreme importance, because, the whole of the nation, would be looking into how the judiciary is protecting the rights of the minority in a majoritarian state. As Gandhiji has rightly quoted, the rights of minorities in majoritarian states, speak about the good governance of the country.
References
- https://thewire.in/communalism/debate-hijab-karnataka-shah-bano
- https://www.bbc.com/news/world-asia-india-60300009
- https://www.theindianwire.com/religion/karnatakas-hijab-controversy-all-you-need-to-know-327490/
- https://thewire.in/communalism/who-takes-exception-to-the-hijab
- https://theprint.in/india/hijab-row-takes-political-colour-in-karnataka/822434/
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