Though the right to choose an attire, particularly when such choice of attire is based on religious affiliations and sentiments, is important, such a right cannot be extended to wearing such attire of choice even in the educational institutions.
A notification issued by Karnataka’s school education department by invoking Section 133 of the Karnataka Education Act, 1983 has given rise to a controversy surrounding the prohibition on wearing of hijab in educational institutions. While there is no reference to any prohibition on wearing hijab in the said notification, it seeks to promote school goers to wear clothing which protects equality and unity and does not hinder public order.
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Prior to the issuance of the said notification by the state government there were instances where students wore saffron scarfs, protesting against permission to Muslim women/girl students to wear hijab inside class rooms. The issue escalated further, leading to protests at several places in Karnataka. In view thereof, there was an apprehension that public order issues may arise. In this backdrop, the notification in question was issued.
The said notification is currently a subject matter of challenge before the High Court of Karnataka. The challenge to the said notification is on both procedural and substantive grounds. The substantive legal grounds for challenge to the said notification and the underlying socio-political implications of the said notification are required to be addressed.
Insofar as the substantive challenge to the notification is concerned, the arguments advanced by the petitioners before the Karnataka High Court can be found here. It is contended that the right to wear hijab is an essential religious practice which cannot be restricted by the State and that wearing of hijab is a facet of freedom of speech and expression under Article 19(1)(a) of the Constitution of India.
A reference was made to the verses of the Quran which impose an obligation on women to cover their bodies. It was also contended that exposure of the body by females was considered to be “haram” in Islam. References were also made to the Hadith which prescribes punishments for not covering the head.
Undoubtedly, the petitions have given the court the opportunity to delve deep into controversial questions of law relating to religious freedom and the interplay between the right to profess, practice and propagate religion and other fundamental rights including the Right to Equality under Article 14, as also the legitimate interests of the State to protect and preserve the social fabric and determine and enforce adherence to moral standards or principles in public institutions or educational institutions.
The wearing of burqa/nikab/hijab, etc, by Muslim women has been a subject matter of social and political debate for several years now. The conservative Islamists have always advocated burqa and nikab mandates. On the other hand, reformist voices within Islam and outside Islam have propagated ideas of liberation of Muslim women from practices which further gender stereotypes.
Amongst the Islamic scholars as well, there are differences of opinion on this issue. Interestingly, Dr BR Ambedkar, in his book Pakistan and the Partition of India, expressed strong views on this issue. It is pertinent to note that Dr Ambedkar extensively addressed the exclusionary effects of the burqa system and advocated social reform and liberation from such practices.
On quite a few occasions, the controversy surrounding hijab/nikab has been taken to the constitutional courts. In the case of Amnah Bint Basheer v. Central Board of Secondary Education, the Kerala High Court held that wearing a headscarf/hijab/burqa constitutes an essential practice in Islam. Despite this observation, a CBSE directive imposing a dress code for an examination was not quashed. Interestingly, the court noted that even if a practice is essential to a religion and protected by Article 25, restrictions on the grounds of public order, morality, and health can be imposed by the State. It then made an attempt to balance the right of the individual with the right of the institution.
In another case, (Fathima Tasneem v State of Kerala) the High Court of Kerala held that the collective rights of an institution would be given primacy over the individual rights of the petitioner. The case involved two girls, aged 12 and 8, represented by their father, who wanted his daughters to wear the headscarf as well as a full-sleeved shirt. The school that refused to allow the headscarf was owned and managed by the Congregation of the Carmelites of Mary Immaculate (CMI) under CMI St Joseph Province.
The court ruled in favour of the school and held that the petitioners cannot seek the imposition of their right as against the larger right of the institution. The court held that it was for the institution to decide whether the petitioners could be permitted to attend the classes with the headscarf and full sleeve shirt. It was further also held that it was purely within the domain of the institution to decide on the dress code and the court cannot even direct the institution to consider such requests.
The legal question that is required to be addressed is as to whether the State or any educational institution can legitimately restrict female students professing Islam from wearing a hijab/niqab or any other attire which is distinct from the prescribed uniform of such educational institution. It is noteworthy that in several foreign jurisdictions as well, restrictions on such attire have been imposed and even upheld by the constitutional courts.
For example, the European Court on Human Rights had upheld a ban on wearing a full face veil in any public place in France. The said ban was challenged by a woman professing Islam on the ground that it violated her privacy and religious freedom. The ban was defended by the French government on grounds of public safety and on grounds of gender equality, human dignity and the minimum requirements of life in society. The court upheld the ban on the ground that the only legitimate aim of the ban was to guarantee minimum requirements of “living together” in society.
In Germany, compulsory mixed swimming lessons in schools were challenged by parents of young Muslim girls on several occasions before the courts. The courts time and again upheld such stipulations of mixed swimming lessons for girls and boys by holding that this was a social norm in Germany and a way of life. Similar issues relating to mixed swimming lessons were also brought before the Federal Supreme Court of Switzerland which also took a similar view upholding mixed swimming lessons.
It cited the need for integration, social cohesion and a harmonious society.
In the Indian context, arguments have been advanced that our country follows positive secularism, unlike several European countries which follow negative secularism. It is also argued that the right to privacy is recognised by the Supreme Court and the right to wear clothes of one’s choice is also part and parcel of the said right. However, to argue that such a right extends to wearing clothes of one’s choice even in educational institutions would amount to stretching the right too far.
Even if it is possible to so stretch the said right, the State would still be well within its rights to impose reasonable restrictions to achieve certain legitimate interests and the courts would normally have to show deference to the decisions of the State. Any interpretation to the contrary may also give rise to future claims of the right to wear hijab by women from uniformed services such as police force and such other services.
The evolving constitutional jurisprudence in India reveals a trend where the courts have frowned upon gender stereotypes and practices derogatory to women. It has been held that religious freedoms are subject to constitutional morality. It is evident that the religious freedom under Article 25 can be legitimately restricted by the State on the ground of public order and morality.
Morality has been understood by the courts to mean constitutional morality.
The said constitutional morality, according to the Supreme Court, is governed by principles of justice, liberty, equality, fraternity, and secularism. In the Sabarimala case, the court has held that the courts must deny protection to practices which detract from the constitutional vision of justice, liberty, equality irrespective of the source from which they claim legitimacy, even if it be a religious text.
In respect of the hijab mandates, it is clear that the said mandates contained in the relevant religious texts are a clear manifestation of gender stereotypes and are contrary to the principles of liberty and human dignity. Undoubtedly, religion contains prescriptions concerning every aspect of the life of man. However, while examining the questions concerning rights of the state to impose restrictions on religious freedoms, one must be mindful of the distinctions between matters which are strictly falling within the purview of religion and matters which are in the nature of social injunctions.
The hijab mandate in Islam is undoubtedly in the nature of social injunction and does not constitute any religious/ritualistic/spiritual teaching. The said mandates treat women as chattel and as such, can claim no constitutional or legal sanction whatsoever. Though the right to choose an attire, particularly when such choice of attire is based on religious affiliations and sentiments, is an important right, such a right cannot be extended to wearing such attire of choice even in the educational institutions.
Any restrictions in this regard by the state would be legitimate and would have to be upheld as reasonable. Needless to say that even if it be said that such a right could be covered by Article 25 or that it is an essential religious practice, the State would still be well within its rights to impose reasonable restrictions in the interests of public order, morality, health and the other fundamental rights guaranteed by the Indian Constitution.
Article 30 of the Constitution of India guarantees to all minorities the right to establish and administer educational institutions of their choice. The said right is available to both religious and linguistic minorities and is aimed at ensuring that such minorities are able to preserve their culture. Any dress code prescribed in such institutions will have to be adhered to. On the other hand, the right to wear hijab cannot be claimed in institutions which are of an inherently secular character. Interestingly, the Muslim Education Society had recently banned wearing of burqa in all its schools in colleges. The MES runs more than 150 educational institutions.
The controversy surrounding the right to wear hijab has now taken a political and communal turn, with the quantum of protests and agitations increasing day by day. The Karnataka High Court has appealed to the students to maintain peace and order. Pitching individual religious freedom over the rights of the educational institutions to maintain uniform standards and promote harmony may lead to disturbance to public order.
The individual rights cannot, therefore, claim primacy over the collective conscience and over the desirability of uniformity in discipline at educational institutions which are of an inherently secular character.
The writer is an advocate, Bombay High Court. Views expressed are personal.
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