Hijab controversy took grounds in Karnataka after the Udupi College issued guidelines for the academic year in July 2021 prescribing a uniform dress code.
In September six students (who later became the lead petitioners in the Karnataka High Court) complained of discrimination by teachers against them on religious grounds. By December, their complaint had taken the form of protest that drew intervention of entire country. The very Primary and important issue under consideration of Supreme Court is whether Hijab is a fundamental right or mere a religious practice.
As of now, a settle law position says that even though right to religion is covered under Art. 25 of the constitution and art 19- Right to Speech and 21- Personal Liberty of the constitution but can it be excluded or included in under ‘Reasonable Restriction’ of the fundamental rights. However, to consider any religious practice under Art 25 of the Constitution must fall within the ambit of ‘Essential Religious Practice”.
Before we get into the issue lets see what the Holy Quran Say on Hijab-
How does the Quran address the issue of Hijab-
Term Hijab is reiterated seven times in the Quran referring each time exactly to the same means Curtain, Separation, mask but the verse that has been most often used to prove the obligation of veiling for women and mentions the term Hijab is as under-
“ O you who have been believed, do not enter the houses of the prophet except when you are permitted to meal…. And when you ask (his wives) for something, ask then from behind a separation (Hijab) Quran 33;53.
As it indicates here, the Hijab concerns only the wives of the prophet and meets a circumstantial requirement in order to respect the private life of Prophet. Besides, it does not represent, in anyway, a particular model of clothing.
It is therefore, quite clear that the term Hijab does not absolutely refer to the meaning given nowadays. Hence it could be ascertain that Hijab is not an essential in Islam.
IS HIJAB ESSENTIAL IN ISLAM?
Before considering the issue, it is pertinent to know whether Hijab fall under essential right in Islam or not?
Many Islam Scholar would say that Head Cover is mandate in Quran however while answering the same Karnataka High Court referring ingredients of Article 25 of the constitution concludes that Hijab is not essential part of Islam. Art 25 of the Constitution guarantees a person the freedom of conscience and the right to freely profess, practice, and propagate her religion. But this fundamental right is subject to public order, morality and health. This is not an absolute right.
UNIFORM VS FUNDAMENTAL RIGHT-
School Uniforms are form of secular democracy, it demonstrate secular and homogeneous in the Schools and colleges therefore achieves constitutional secularism. Therefore Fundamental rights cannot be claimed against School Uniforms. Therefore, The Karnataka High Court ruled, “We are of the considered opinion that the prescription of the school uniform is only a reasonable restriction constitutionally permissible, which the students cannot object to.”
Judicial Review – Essential Religious Practice
The hon’ble Supreme Court and High Courts have ample time interpreted the law regarding religious beliefs and practice of religion, however, every time the courts might have opined in different way but all the opinions are based on same foundation called “ Essential Religious Practice The Hon’ble Supreme Court first discussed the concept of ‘Essential Religious Practice’ in the case of Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmidar Thirtha Swamiyar of Shri Shirur Mutt AIR 1954 SC 282. In the said case, the Supreme Court distinguished ‘secular practices’ from ‘religious practices’ and held that the latter alone is protected by article 25 of the Constitution. The ‘religious practice’ must be essential to the religion itself.
The Supreme Court further elaborated that the Essential part of a religion means the core beliefs upon which a religion is founded. Essential practice, in a religion, means those practices that are fundamental. It is on these essential practices that the superstructure of the religion is built on without which any religion will be no religion. The test to determine whether a part or practice is essential to a religion is to find out whether the nature of the religion will be changed without that practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part.
In order to understand whether the practice of wearing a Hijab satisfies the test of Essential Religious Practice, it is important to further study the judicial developments in this regard.
In the case of Javed and Ors. v/s State of Haryana and Ors. (2003) 8 SCC 369, a challenge was laid to the Haryana Panchayati Raj Act disqualifying anyone with more than 2 living children from holding specified offices in the Panchayat. The Petitioner, a Muslim by faith, submitted, amongst other grounds, that his personal laws permitted him performance of marriages with up to 4 women for the purpose of procreating children and restriction thereof would violate Art 25 of the Constitution of India. The Hon’ble Supreme Court held that such a protection can be claimed only if the same forms an Essential Religious Practice. The Hon’ble Court further held that what is permitted or prohibited does not become a positive tenet of a religion and that a practice does not acquire sanction simply because it is permitted. The Hon’ble Court concluded by holding that the same can be regulated or prohibited by Legislation in the interest of public order, morality, and health.
In the case of Khursheed Ahmed Khan v/s State of UP and Ors. (2015) 8 SCC 439 the Supreme Court affirmed the principle propounded in the Javed Ali case (supra.). In the instant case, the Petitioner challenged the UP Government Servants’ Service Conduct Rules, 1956 that provided for removal of government servants for proven misconduct of contracting another marriage during the subsistence of an already existing one. The challenge to the rule by the Petitioner was that it was permissible for Muslims to enter into marriage with 4 women and as such the said service rules violated his Fundamental Rights under Article 25 of the Constitution of India. The Hon’ble Supreme Court while referring to a plethora of judgements including the Javed Case (supra.), negatived the plea and held that Art 25 was subject to public order, morality, and health and further went on to hold that polygamy was not an integral part of the religion and monogamy was a reform within the powers of the State under Art 25 of the Constitution of India. Holding so, the Hon’ble Court dismissed the Petition and upheld the service rule
To conclude with the issue of Hijab will have to undergo the test of ‘Essential Practice of Religion’. And in such case I feel the issue has very little chances of recognizing Hijab as ‘Essential religious Practice’ and if the petitioners fail to convince the court, it would then, remain as religious practice but not essential religious practice.
(Author is columnist and practicing advocate at Bombay High Court)