There is no place for Hijab right now: Hijab ban issue and freedom of religion in Karnataka

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28 Dec There is no place for Hijab right now: Hijab ban issue and freedom of religion in Karnataka

Posted at 28 Dec 2023 in Current Affairs by
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(This article can be found in ‘Official website of Supreme Court’, ‘Official website of Kerala High Court’, ‘Official judgment of Fathima Tasneem vs. State of Kerala (2018) case’, ‘Indian Express’, ‘The Hindu’, ‘Government of Karnataka Home The official website of the Ministry, ‘Jansatta’, ‘Sansad TV’s program Sarokar’ is related to the brief summary of the combined editorial of the monthly magazine ‘World Focus’ and ‘PIB’. It also includes the suggestions of the PLUTUS IAS team. This article is related to UPSC This article specifically deals with the ‘Indian Polity and Governance, Social Justice, Issues related to Women, Fundamental Rights, Issues related to Freedom of Religion, Judiciary, Government Policies and Interventions, Supreme Court, Hijab’ section of the Civil Services Examination. ‘No place for Hijab now: Hijab ban issue and freedom of religion in Karnataka’ under ‘Daily Current Affairs )’ .

General Studies – Indian Polity and Governance, Social Justice, Issues related to women, Fundamental Rights, Issues related to freedom of religion, Judiciary, Government policies and interventions, Supreme Court, Hijab.

Why in discussion / News ?

Recently the Supreme Court gave a divided judgment in the Karnataka hijab ban case.

  • In the event of a split decision as described in the Constitution of India, the case is heard by a larger bench.
  • The bench to which the case of a split decision is transferred may be a three-judge bench of the High Court, or an appeal may be made to the Supreme Court.
  • Petitions by a section of Muslim students in Karnataka seeking permission to wear hijab in classrooms were rejected by the High Court in March 2022 on the grounds that it is not a part of essential religious practice in the Islamic faith and it was unnecessarily construed on grounds of religious freedom. But an appeal has been made for hearing.

There is no longer any restriction on Muslim girl students wearing hijab in educational institutions of Karnataka. The Congress government made this announcement on 23 December 2023. Karnataka Chief Minister Siddaramaiah had made this announcement on December 22, 2023, at the inauguration of three police stations in Nanjangud in Mysuru district. Karnataka Chief Minister Siddaramaiah argued behind this that in India it is the personal right/matter of any person to choose to wear any kind of dress and eat any kind of food. In India, behind such controversial matters is vote bank politics and appeasement.

Recently, six students at a college in Karnataka’s Udupi district were banned from entering the college for wearing hijab (a garment worn by some Muslim women in public). This issue raises legal questions on freedom of religion and whether the right to wear the hijab is constitutionally protected. Or it also has some different implications. This matter had reached the Supreme Court via Karnataka High Court. Ultimately it was decided that there will be a ban on sitting in the classroom wearing hijab in educational institutions. Will be allowed to come to class only wearing Uniform. Female students could come to school in hijab, but would have to take off their hijab before entering the classroom.

hijab

What are its implications?

According to the fundamental rights granted to Indian citizens by the Indian Constitution, Indian citizens have the following fundamental rights –

  • Freedom of conscience: Freedom of conscience and to freely profess, practice and propagate religion.
  • Right to practice religion: The right to declare one’s religious belief and faith publicly and without fear.
  • Right to practice: The right to practice religious worship, rituals, ceremonies and to demonstrate beliefs and ideas.
  • Right to propagate: To communicate or disseminate one’s religious beliefs to others or to explain the principles of one’s religion.

Test of essential religious conduct:

  • Over the years the Supreme Court has developed a practical test process for determining which religious practices can be constitutionally protected and which can be ignored.
  • The Supreme Court in the year 1954 in the Shirur Math case said that the word ‘religion’ would include all the rituals and practices ‘integral’ under a religion. The test to determine what is ‘integral’ is called the ‘essential religious practice’ test.
  • This test is often criticized by legal experts in relation to judicial determination of religious practices, as it leads the court to interfere in religious matters.
  • Constitutional experts are of the opinion that the work of the court should be limited to restricting religious practices for the sake of public order and the court should not determine the practices necessary for any particular religion. In many cases the Court has applied this test to certain practices.
  • The Supreme Court, in a judgment given in the year 2004, held that the ‘Anand Marg sect’ had no fundamental right to perform ‘Tandav dance‘ on public roads, as it is not an essential religious practice of the sect.
  • There are many instances in which the Court has also applied this test to individual liberty as these issues are considered to be largely community-based.
  • In 2016, the Supreme Court had upheld the decision of the Indian Air Force to discharge a Muslim airman for having a beard.
  • The Armed Forces Regulations, 1964 prohibit hair growth for armed forces personnel, except ‘those personnel whose religion prohibits cutting or shaving of hair.’
  • In one of its decisions, the Court essentially held that ‘keeping a beard is not an essential part of Islamic practices’.

Highlights of the court’s decision:

Judgments of the courts so far on the issue of hijab:

 

  • Two such petitions were filed before the Kerala High Court in 2015, challenging the dress code for all India pre-medical admissions, which permitted wearing of slippers with “salwar/pajama” and light, half-sleeved shorts. There was a provision to wear only clothes which did not have big buttons, badges, flowers etc.
  • Accepting the contention of the Central Board of Secondary Education (CBSE) that the rule was only to ensure that the candidates do not use unfair means by hiding objects inside the clothes, the Kerala High Court has asked the CBSE to impose additional scrutiny on those students. Instructed to take measures who intend to dress in accordance with their religious custom, but which is contrary to the dress code.
  • The Kerala High Court examined this issue more closely in the case Amna Bint Bashir v. Central Board of Secondary Education (2016). In this case, the Court held that the practice of wearing hijab is an essential religious practice, but did not strike down the CBSE rule.
  • The Court once again allowed “additional measures” and safeguards in 2015. However, on the issue of school-prescribed dress, another bench ruled differently in the case Fathima Tasneem v. State of Kerala (2018).
  • The single bench of the Kerala High Court said that- ‘The collective rights of an organization will be given priority over the individual rights of the petitioner. ,

Protection of religious freedom under the Constitution:

  • Articles 25 to 28 of Part-3 (Fundamental Rights) of the Constitution provide the right to freedom of religion.
  • Article 25 (1) of the Constitution guarantees ‘freedom of conscience and the right to profess, practice and propagate religion’.
  • It is a right that guarantees negative freedom, which means that the state will ensure that there is no interference or obstruction in exercising this freedom.
  • The Constitution, like all fundamental rights, can restrict the right to public order, decency, morality, health and other state interests.
  • Article 26 explains the freedom to manage religious affairs subject to public order, morality and health.
  • According to Article 27, no person shall be compelled to pay any tax for the propagation or practice of any particular religion.
  • Article 28 explains the freedom to attend religious instruction or religious worship in educational institutions.

Solution to the problem/way forward:

  • In the current political climate, the decision by the Government of Karnataka to mandate either a prescribed uniform or any dress in the “interest of unity, equality and public order” has been viewed as a majoritarian attempt in the guise of enforcing secular norms, equality and discipline in educational institutions. Also seen as a claim.
  • A single decision that legitimizes this non-inclusive approach to education for people of any community, religion or caste and a single policy that can deny equal opportunities to Muslim women is not in the interest of the country. And it will also be unconstitutional.
  • In schools, colleges or other educational institutions, hijab or any dress, religious or otherwise, should not be different from the uniform prescribed by the school, colleges or other educational institutions. Therefore, there should be reasonable scope for wearing any attire other than the uniform as long as it does not detract from the uniform, such as hijab or any other religious attire. Therefore, the uniforms prescribed by schools, colleges or other educational institutions cannot be rejected on the basis of individual freedom of dress.

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Practice Questions for Preliminary Exam:

Q. 1. Consider the following statements regarding the issue of wearing hijab on the basis of freedom of religion.

    1. Articles 25 to 28 of Part-3 (Fundamental Rights) of the Constitution provide the right to freedom of religion.
    2. The Constitution of India grants citizens the right to freedom of conscience and religion to freely profess, practice and propagate religion.
    3. The Constitution, like all fundamental rights, can restrict the right to public order, decency, morality, health and other state interests.
    4. According to Article 27 of the Indian Constitution, no person shall be compelled to pay any tax for the propagation or practice of any particular religion.

Which of the above statement/statements is correct?

  • Only1 and 4 
  • Only 1, 3 and 4 
  • All of these.
  • None of these.

Answer – C

 

Practice Questions for Main Exam:

Q.1. “On the basis of freedom of religion, any religious identity should be free from any public display in any public places/ places or institutions.” In the light of this statement, what is the situation by the Government of Karnataka regarding school uniforms? Critically evaluate the orders/decisions given in the same.

 

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