Mar 15, 2022
Secularism in India: The Hijab Row
Introduction
India is a diverse country consisting of people belonging to various religions, castes, creeds, and socio-cultural backgrounds. The Indian Constitution did not contain the word ‘secularism’ when it was framed, until the 42nd amendment, when the term ‘secular’ was added to the Preamble of the Indian Constitution, along with the term ‘socialist’. The basic aim was to promote fraternity while assuring unity and integrity of the nation and protection of individual rights. A secular state is a state which does not prioritise any particular religion but accepts and respects all religions and communities of people.[1]
Secularism can be Positive Secularism or Negative Secularism. The concept of negative secularism connotes a complete separation of religion (the church) and State (the politics). This generally prevails in Western countries. However, the Indian Constitution is embodied with positive secularism, which means giving equal respect to all religions and protecting all religions equally. In the Ayodhya verdict[2], the Supreme Court observed that the Vedic percept of “Sarva Dharma Sama Bhava” indicates positive meaning to Indian secularism, that is developing an understanding and respect towards all religion in the country. Any state government pursuing anti-secular activities shall be punished under Article 356 of the Indian Constitution[3].
However, over the past few days, India is witnessing some chaos concerning the question of whether a state government can decide if a particular religious practice is essential for the people of that community. With the ongoing case of Smt Resham & Anr v. State of Karnataka & Ors (Hijab Row case), this article will present a clearer picture regarding this burning issue and the events that have taken place so far.
Background of the case
On 3rd February 2022 female Muslim students wearing hijab were not allowed to attend classes by the principal and college staff of Milagres College in the Udupi district of Karnataka on a plea that there was a Government order prohibiting wearing headscarves to educational institutions. Following this, three petitions were filed in the Karnataka High Court. On 8th February 2022, the first hearing of the case was held by a single bench of Justice Krishna S. Dixit of Karnataka High Court.
Grounds argued by the petitioners were as follows:
Since the establishment of Milagres College, Udupi, Muslim girls have been wearing hijabs without any hindrance. Hence the sudden restriction is unnecessary and unanticipated.
According to the University Grants Commission (UGC) Act, there is no prescribed rule of a particular uniform to be worn in educational institutions.
There is a violation of the fundamental right to education against the students without any justification.
Article 25(1) of the Indian Constitution provides freedom to practise religion.
Petitioners also claimed involvement of political interests in the internal college management.
While the hearing was underway in the Karnataka High Court, the ‘Saffron Hijab’ protest swelled in different parts of the State against the students wearing hijabs. As a result of this, the Chief Minister of Karnataka, Basavaraj Bommai, ordered the closure of all high schools and colleges.
Justice Dixit, after the first hearing, urged the students and the public to maintain peace and tranquillity in the State and referred this matter to a larger bench.
On 10th February 2022, a three-judge bench headed by the Chief Justice of Karnataka High Court, Justice Ritu Raj Awasthi, along with two other senior judges passed an interim order restricting all the students of the State from wearing any religious garments to the classes, till the matter is resolved. They also directed the State Government to re-open educational institutions without hindering the academic year of the students.[4]
Arguments of the Petitioners
As the three-judge bench of Karnataka High Court, Chief Justice Ritu Raj Awasthi, Justice Krishna S. Dixit, and Justice J.M. Khazi continued to hear the hijab row petitions, where senior advocate, Yusuf Muchhala, argued that Article 25(1) of the Indian Constitution[5] guarantees ‘Freedom of Religion’ to all persons of the country. However, it has been observed by the counsel of the petitioner that ‘freedom of conscience’ is distinct from the ‘right to profess, practice and propagate religion’. Some people might not believe in any religion, whereas some people might believe in all. Freedom of conscience protects these beliefs of individuals as a form of their freedom to express their choices and beliefs. Hence it must not be forgotten that the choice of clothing of an individual is a part of their freedom of expression.
In order to argue with the defendant’s submission that wearing hijab is not an integral part of the Muslim religion, Muchhala submitted that “When a right is claimed under Article 25(1) and Article 19(1)(a), what matters is the entertainments of a conscientious belief by an individual; it is not necessary to determine whether it is an integral part of the religion”.
Justice Jasti Chelameswar’s opinion in the landmark Puttaswamy judgement[6] of the Supreme Court was also cited by the petitioner’s counsel where he observed freedom of conscience to fall within the fundamental right to privacy. Also, in 2016 Kerela High Court had recognised and allowed Muslim girls to wear hijab when sitting for medical entrance exams.[7]
The Karnataka Government order dated 5th February 2022, based on which students are not being allowed to wear hijabs to classes in educational institutions, is argued by the petitioners to be completely arbitrary and being violative of Article 14 of the Constitution[8]. The petitioners further argue that this order also asks College Development Committees to prohibit the wearing of hijabs or any other religious attire to educational institutions, without any consultation and without providing an opportunity to the aggrieved students and their families, to argue against these rules.
Continuing the petitioner’s arguments, senior advocate Ravivarma Kumar pointed out that Article 25 of the Indian Constitution guarantees freedom of free practice and propagation of religion to all the persons of the country, however, it is subject to restriction. The restriction has been provided under the same article, that is Public Order. Maintaining public order is a power of the State Executive, hence a mere College Development Committee is not competent to decide for this matter. He explained that the Karnataka Education Act 1983[9] and its 1995 Rules[10] never gave any authority to College Development Committees to frame rules or have jurisdiction over matters which affect the fundamental rights of the people of the country.
Previously on the hijab row, the Karnataka High Court had heard two broad strands of argument by senior advocate Devadatt Kamat:
The Karnataka Government’s order dated 5th February 2022 unlawfully gives the power to College Development Committees to ban hijabs, with the presence of an existing fact that there is no state-wide policy on uniforms of educational institutions.
Muslim girls are being forced to give up what they view as an essential part of their religious practice even though there is no threat to public order.
Senior advocate Kamat pointed out an observation made by the Supreme Court in the Ratilal Panachand Gandhi case[11] that “No outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner”.
Along with Kamat, senior advocate Sanjay Hedge noted the protection of freedom of conscience by a landmark decision given by the Supreme Court in Bijoe Emmanuel case[12], where the apex court overturned the lower court’s decision to expel students from Jehovah’s Witnesses faith who would stand during the national anthem but would not sing it due to their own religious beliefs.
Arguments of the Defendants
On the other side of the case, Advocate General Prabhuling Navadagi, representing the Karnataka Government, countered the petitioners’ arguments stating that under Article 25(1) of the Indian Constitution, the State has the power to restrict matters of religious nature. He explained that during the Covid crisis, the State Government had ordered the closure of religious places such as temples, mosques, churches, etc as allowing them to remain open would have created disruption in the State. Similarly, it can not be said that wearing hijabs is an absolute Muslim religious practice, hence the State Government has the right to ban wearing hijabs if it causes the public disorder. Navadagi argued that the practice of wearing a hijab is not an essential religious practice of Islam and hence, does not violate Article 19(1)(a) of the Indian Constitution, and can be restricted under Article 19(2)[13]. It was also argued that Rule 11 of Karnataka Educational Institutions Rules, 1995[14] places a reasonable restriction inside the institutions and it is subjected to institutional discipline.
Another vital question is whether a State Government has the power to decide whether a particular act is an essential practice of religion.
Advocate General (AG) Prabhuling Navadagi argued that the entire claim by the petitioners to make hijab compulsory is beyond the ethos of the Indian Constitution. It was pointed by Navadagi that if hijab gets religious sanction then Muslim women will be obliged to wear it. It is the woman’s individual freedom to choose what to wear and what not. Hence if wearing hijab gets compulsory through religious sanction, then the liberty to choose one’s own clothing will be deprived for those women.
He further argued that as far as private unaided minority educational institutions are concerned, the defendants are not interfering with the school/college uniform. Meanwhile, senior advocate R. Vekataramani appearing on behalf of teachers who were made respondents in a writ petition argued that the State should not interfere to decide what constitutes as ‘essential’ in a particular religion. State can only take a stand when the matter collides with public order, health and morality.
The AG also stressed that a practice may be religious but not necessarily essential. He referred to the Ismail Faruqui judgement[15], stating that the Mosque is not an essential part to practice Islam, as Namaz can be offered anywhere, even in the open. This aspect of this case was connected with the present case, and argued by the AG that there was no restriction on wearing hijab on campus, the only restriction is inside the classroom during class hours. Further, citing the Triple Talaq case[16] and Sabrimala case[17], he argued that a religious practice claimed to be ‘essential’ must have been mandatory and not optional. Hence, as wearing hijab is not compulsory for all Muslim women, it is an optional practice depending upon an individual’s choice, therefore it cannot be said to be ‘essential’ to a religion.
The Karnataka High Court, after hearing the arguments from both sides, has agreed to hear the pending petitions, meanwhile, has directed the State to check if its interim order dated 10th February 2022 (interim order restricting all the students of the State from wearing any religious garments to the classes) is not being violated. The Karnataka High Court on 23 February, 2022 clarified that this interim order passed by it will apply to both Degree Colleges and Pre-University Colleges, where there is a prescribed uniform for the students. Also, this order applies to only students and not teachers.
Judgment (Smt. Resham v. State of Karnataka)
On 15th March 2022, the Karnataka High Court ruled that wearing the hijab is not an essential practice in Islam. The bench led by Chief Justice Ritu Raj Awasthi said, ‘We are of the considered opinion that wearing hijab by Muslim women does not form a part of essential religious practice in Islamic faith’. The High Court also held that the Karnataka Government Order dated 5th February 2022 is not unconstitutional.
The three-judge bench of Cheif Justice Ritu Raj Awasthi, Justice Krishna S. Dixit, and Justice JM Khazi held the judgment according to the following major reasons:
Hijab is not a part of the essential religious practices of Islam protected under Article 25 of the Indian Constitution[18].
The requirement of uniform is a reasonable restriction on the fundamental right to freedom of expression under Article 19(1)(a) of the Indian Constitution[19].
The restriction of wearing hijab to educational institutions is also no violation of privacy under Article 21 of the Indian Constitution[20].
The Government has the power to pass the Government Order; no case is made out for its invalidation.
The hearing before the Bench had lasted 11 days, before the verdict was reserved on 25th February 2022. Chief Minister Basavaraj Bommai welcomed the judgment and appealed to all the communities to accept it and respect it in the interest of the student community.
[1] https://www.arvindguptatoys.com/arvindgupta/jahagir-secularism.pdf
[2] https://www.sci.gov.in/pdf/JUD_2.pdf
[3] https://indiankanoon.org/doc/8019/
[4]https://karnatakajudiciary.kar.nic.in/judgements/WP_2347_2022.pdf
[5] https://indiankanoon.org/doc/631708/
[6] https://indiankanoon.org/doc/91938676/
[7]https://www.deccanherald.com/national/south/keralas-precedents-on-hijab-row-gets-focus-1079054.html
[8] https://indiankanoon.org/doc/367586/
[9]https://righttoeducation.in/sites/default/files/THE%20KARNATAKA%20EDUCATION%20ACT,%201983.pdf
[10]https://dpal.karnataka.gov.in/storage/pdf-files/Karnataka%20Rules/01%20of%201995%20Rules%20(E)(1).pdf
[11] https://indiankanoon.org/doc/1307370/
[12] https://indiankanoon.org/doc/1508089/
[13] https://indiankanoon.org/doc/493243/
[14]Supra note 10
[15] https://indiankanoon.org/doc/37494799/
[16] https://indiankanoon.org/doc/115701246/
[17] https://indiankanoon.org/doc/163639357/
[18] Supra note 5
[19] https://indiankanoon.org/doc/1378441/
[20] https://indiankanoon.org/doc/1199182/
