A number of petitions have been filed before the Karnataka HC challenging the decisions of the school and college committees. Let’s look at the laws that are at play here.

Wearing the hijab at a protest, hold up placardsPTI
Voices Hijab row Monday, February 14, 2022 - 08:23

A repulsive and disturbing video recently surfaced on social media which shows the authorities of a particular government college in India shutting the gate to prevent a group of hijab-wearing girls from entering the school. This incident, combined with many other similar occurrences in the recent past, poses a really important question – do we really feel threatened by a few girls who wear hijab to schools and colleges?

Hijab is considered by many to be deeply rooted in Islamic traditions. The girls who choose to wear it believe that it is an essential part of their religious practice and not wearing the hijab is not an option for them. The government, by not allowing hijab, is essentially asking a lot of these girls to choose between education and their religion. 

Indian laws and cultural exceptions

India is a land of diverse population. Each and every community in India has its own set of customs and practises which are considered to be very dear to them. These customs and practises form their identity and substantial interference with such practises could result in discontent among such communities. However, India has always recognised these cultural differences and has carved out a cultural exception to general laws wherever possible.

Possession of firearms and sharp-edged weapons without a valid licence is prohibited in India. However, the law recognises the cultural significance of kirpan in the case of Sikhs and the cultural significance of guns in the case of the Kodava community, and it provides for an exception to enable these communities to possess arms without a licence. Bigamy is a non-cognizable offense under Section 494 of the Indian Penal Code. However, the law recognises the cultural practices in Islam and has accordingly exempted Muslims from the applicability of this law.

This is the extent to which the Indian government has allowed people to practice their cultural and religious traditions. In light of these exceptions, the call for a ban on wearing the hijab seems absolutely ludicrous. 

Is there a legal basis for banning hijab?

A number of petitions have been filed in this regard before the Karnataka High Court challenging the decisions of the school and college committees. Justice Krishna Dixit who heard a batch of petitions in this matter has referred the matter to a larger bench as the petitions raise certain constitutional questions of seminal importance. While the petitions will be heard, let’s look at the laws that are at play here. 

Article 25(1) of the Constitution of India guarantees to every person freedom of conscience and the right to freely profess, practice, and propagate any religion. There cannot be any restraint on the fundamental right of religious freedom, except when the restraints are placed using police powers of the state or when other fundamental rights specifically provide for such restraints. Further, the issue of wearing a hijab is a matter of expression and it is squarely covered by the protection granted under Article 19(1)(a) of the Constitution. 

It is clear that no other fundamental right prohibits the wearing of a hijab to a public education institution. The policing power enjoyed by the State can however be misused and the government may base its decisions on such policing power by factitiously claiming that wearing of hijab could lead to morality or public order issues. 

In the case of Bijoe Emanuel v. State of Kerala, the Supreme Court considered the issue of expulsion of children from the school for the reason that they did join in the singing of the national anthem. The court held that the expulsion was wrong and observed that the children of Jehovah’s witnesses’ faith need not sing the national anthem if their faith does not permit it. This case exemplifies the kind of deference the Supreme Court gives to cultural and religious practices. 

The Supreme Court in the case of Commr. Of Police v. Acharya Jagadishwara Nanda Avadhuta perfectly captured the spirit of India’s secularism when it observed, “Whilst our constitution is neutral in religion, it at the same time, is benign and sympathetic of all religious creeds however unacceptable they may be in the eyes of the non-believers. Articles 25 and 26 embody a tolerance for all religion.”

In view of the legal precedents set by the Supreme Court, the decision of not allowing Hijab-wearing girls to attend public educational institutes would violate the freedom of conscience guaranteed by Articles 25 and 26 of the Constitution of India.  

The Karnataka government, however, is keen on washing off its hands by claiming that it has no role to play in the whole controversy and the matter of deciding uniforms is left to the school and college committees. Nevertheless, the school and college committees have a duty to ensure that the fundamental rights of students are not violated, and they should be held accountable if they fail to do so. 

Unity in diversity

The right of hijab-wearing girls to attend public educational institutions is well supported by policy concerns, India’s historical context as well as legal precedents. These unfortunate incidents could spur similar incidents in the future and could further fuel the existing polarised atmosphere. 

Unity in diversity is such a casual phrase that everyone throws around in a conversation without realising that India is a living testimony to this phrase. We have survived as one nation despite all the diversity because we respected each other’s beliefs. Come Dasara every year, it is common across Karnataka to see students of all faiths coming together to celebrate Ayudha Pooja. We have always been known for embracing cultural differences and this has been our biggest strength. 

However, if we honestly believe that a few girls donning a scarf over their heads could threaten the social fabric of our nation, then we are really doomed as a nation. India’s constantly evolving yet deeply rooted democracy has stood the test of times before, and it shall prevail this time too. 

Mudassir Husain is a practising advocate from Bengaluru and is a director of a public policy company named I-Polity Forum for Research and Policy. He is presently pursuing his LLM from University of New Hampshire, USA. Views expressed are the author’s own.

This piece was first published in TNM's award-winning weekly newsletter Here's The Thing. To become a TNM Member, click here

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