HIJAB

What does the Indian law say about it?

Historically, it began in France in 1989 – usually referred to as l’affaire du voile (the veil affair) – when three female students were told by the principal of their high school in Creil, a suburb of Paris, that they could not attend the school because they had refused to unveil their headscarves. However, the same year, the Conseil d’État (French Supreme Court) ruled that the scarf’s quasi-religious expression was compatible with the secularism of public schools. Later, in 1994, the Francois Bayrou memo was issued that prohibited hijab in public establishments, and 24 students were suspended from high school for staging a protest against the anti-hijab ruling. In 2004, the French parliament passed the Law of Secularity and Conspicuous Religious Symbols – often referred to as “the veil law” – which forbids the wearing of ostentatious religious articles, including hijab, in public schools. Finally, in September 2010, the Senate of France passed another law prohibiting concealment of the face in public space which resulted in the ban on the veils covering the face, including niqabs.

In India, the state of Karnataka has recently banned hijab on the pretext that religious symbolism should not be worn in schools and colleges, rather a prescribed dress code must be followed. While arguing in the Karnataka High Court, the government representative took conflicting stances: he claimed that Hijab is not a religious article for Muslim girls, and that religious symbolism should not be allowed in educational institutions; therefore to prevent law and order situation, hijab ban has been imposed – self-conflicting and vague arguments.

The aforesaid arguments may satisfactorily be replied from within the Indian Constitution. It may be noted that the fundamental right to freely profess and practice religion is guaranteed by the Indian Constitution to all its citizens through its Article 25 which reads:

“25. Freedom of conscience and free profession, practice and propagation of religion.—(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus…”

A simple understanding of the given proposition, coupled with the plain reading of the above — reproduced excerpt of Article 25, suggests that in no way the right to wear hijab comes within the exceptions of (i) Pubic Order, (ii) Morality, or (iii) Health, as are provided at the beginning of the said Article. One may justly argue that wearing of hijab is a higher standard of morality and that, rather than the free choice of wearing it, the ban on the hijab has disturbed public order in the country.

Furthermore, in an Explanation to Article 25, it is categorically provided that “the wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.” Every conscious man knows that for many Muslims, hijab is as sacred a religious commandment as kirpan is for many Sikhs. In view of this, the ban on hijab is a clear violation of not only the fundamental right of every Muslim citizen of India to freely practice his/her religion but also of the fundamental rights of equality before the law and of the prohibition against discrimination on the ground of religion. (The last mentioned fundamental rights shall also be discussed in further discussion).

Moreover, the Indian Supreme Court in a landmark case ‘Emmanuel v. State of Kerala’, has laid down that:
“…whenever the Fundamental Right to freedom of conscience and to profess, practise and propagate religion is invoked, the act complained of as offending the Fundamental Right must be examined to discover whether such act is to protect public order, morality and health, whether it is to give effect to the other provisions of Part III of the Constitution or whether it is authorised by a law made to regulate or restrict any economic, financial, political or secular activity which may be associated with religious practice or to provide for social welfare and reform…”

The Supreme Court of India also interpreted the constituents of religious belief within the meanings of Article 25 of the Indian Constitution as under:
“…The question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion. Personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of Art. 25 but subject, of course, to the inhibitions contained therein…”

In view of the above discussion, and keeping in view the importance of hijab as religious article for many Muslim families in India, every student of law may conclude that the ban on hijab is in violation of the right to freely profess and practise religion.
In this regard, Articles 14 and 15 of the Indian Constitution also deserve special mention. The relevant portions of the aforesaid Articles are reproduced as under:
“14. Equality before law.—The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
“15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.— (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them ….”

The above-mentioned fundamental rights guarantee every citizen equality before law and prohibit any sort of discrimination including discrimination on the ground of religion. Therefore, one may argue that when Hindu boys are allowed to carry saffron mufflers on their shoulders – which are fairly visible in the viral video of the incident and which are, obviously, of a religious significance – how Muslim girls would be prohibited from wearing hijab without discriminating later on the ground of religion?
Not just freedom of religion, equality before law and prohibition of discrimination is recognized by the Indian Constitution, but right to conserve distinct culture is also guaranteed to the minorities under Article 29 of the Indian Constitution. The said Article reads as follows:
“29. Protection of interests of minorities.—(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.”

Many world scholars do consider that hijab is often a cultural, not a religious, construct. Even then it enjoys the protection of Article 29 as referred to above.

In the end, let us make things simple again. What to wear by whom is to be decided by the concerned wearer and by none else. If Katrina Kaif chooses to wear a short skirt and her right to choice is hailed, then the right of a Muslim girl to wear a hijab should also be respected on the same standard. Regulating the dress code in the social sphere would bring conflict among the community. Sanity must prevail, though it seems impossible in the present religiously prejudiced setup in many states of India.

The writer is a former Civil Judge-cum- Judicial Magistrate and holds LL.M (Criminology) degree. He is, presently, practicing as an Advocate High Court. He can be reached at qlcian_7150@yahoo.com.