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Hijab Ban Controversy

Keywords

Hijab: A hijab is a headscarf, not a veil that hides the ear, head, and neck. Merely face is visible.

Secular: Equal respect for all religions. It eradicates God from the matters of the state and guarantees that no one shall be discriminated against based on religion.

The Essential Integral Practice of Religion: It means all those practices fundamental to a religion and not following them would result in the change of religion itself.

Hijab and Quran

As we know that major part of Muslim law is governed by the Quran which is basically known as the foundation of all law of Muslims these are the Aayas of the Quran in which Allah himself mention about the same in this way-

Sūra xxiv. 31, C. – 158 ”

“Tell the believing women to reduce [some] of their vision and guard their private parts and not expose their adornment except that which [necessarily] appears thereof and to wrap [a portion of] their headcovers over their chests and not expose their adornment except to their husbands, their fathers, their husbands’ fathers, their sons, their husbands’ sons, their brothers, their brothers’ sons, their sisters’ sons, their women, that which their right hands possess, or those male attendants having no physical desire or children who are not yet aware of the private aspects of women. And let them not stamp their feet to make known what they conceal of their adornment. And turn to Allah in repentance, all of you, O believers, that you might succeed.”

Hijab and Constitution of India

Article 25: Freedom of conscience and free profession, practice

Article 25 (Freedom of conscience and free profession, practice, and propagation of religion), Article 25 guarantees the freedom of conscience, the freedom to profess, practice, and propagate religion to all citizens.

Article 19: Freedom of Speech and Expression

Article 19 of the Constitution provides freedom of speech which is the right to express one’s opinion freely without any fear through oral/written/electronic/broadcasting/press. Freedom of expression includes Freedom of the Press.

Essential Religious Practices

Essential religious practices mean all those practices that are fundamental to a religion and not following them would result in a change of religion itself.

The Commissioner, Hindu Religious Endowments, Madras v. Shri LakshmindarTirthaSwamiyar of Shri ShirurMutt 1954

In this case first time the supreme court developed the essential religious practice test. In this case, Supreme Court held that the term “religion will cover all rituals and practices integral to religion. The test to determine what is integral is termed the essential religious practice test.”

Shayara Bano v. Union of India 2017

In this case, the Supreme Court held that Triple Talaq is not an essential practice and could not be offered constitutional protection in Article 25. The court further said that it was against the basic tenants of the Quran and violative of the shariyat. A practice that is nearly permitted or not prohibited by religion cannot be considered an essential or positive tenant sanctioned by that particular religion.

How has Court ruled so far on the issue of a Hijab

Amnah Bint Basheer v. CBSE, 2016

The court stated that it is the fundamental right of the petitioner to choose the dress of their own choice. Further, it was also noted that the right to establish, manage and administer an institution is equally a fundamental right. So In this case it was held that the hijab is an essential religious practice.

Fathima Thasneem v. State of Kerala, 2018

The Court status that the petitioners cannot seek the imposition of their individual rights as against the larger right of the institution. It is for the institution to decide whether the petitioners can be permitted to attend the classes with the headscarf and full sleeve shirt as it is clearly their domain for any decision and the court cannot direct the institution to consider such a request that its petition was dismissed. So in this case it was held that the hijab is not an essential religious practice.

Reshma Banu v. State Of Karnataka 2022

Facts of the case

The facts of the case as the students of Karnataka boycotted the college for contending that they are not permitting them to attend classes for a few days. UDUPI BJP MLA RAAT, colleges development committee discusses with parents and other stakeholders. He told students to follow, the college’s dress code in the classroom and not allow them to wear hijab in college. The six students decided to stay away from the classroom the students file the petition in Karnataka High Court and approach the National Human Rights Commission.

Issues of the case

1. Expression wearing a hijab is an expression that is safeguarded under Article19(1)(a) of the Indian constitution which ensures the right to freedom of speech and expression. The same article is also subjected to the limitation on the subject of reasonable restrictions mentioned under article 19(2).

It contains sovereignty and integrity of India, friendly relations with foreign States, public order, decency or morality or contempt of courts, defamation or incitement to an offense. If a student silently wears a hijab and attends classes it cannot in any manner be said to be a practice that disturbs public order and is only a profession of their faith.

2. Carrying a hijab is a profession of their faith and therefore it would be protected under Article 25 of the Indian constitution which States that freedom of conscience, freedom to profess, practice, and propagate religion to all citizens.

Judgment

A full bench of the Karnataka High Court held that the wearing of a hijab is not a part of essential religious practice in the Islam faith and thus is not safeguarded under Article 25 of the Indian Constitution.

The Karnataka High Court acknowledged that essential practices are those that are fundamental to religion and “Exist for time immemorial”. These are practices that either precede the religion or are found at the time of origin of the religion in the society are formed practices the cornerstone of religion.” If these practices are not followed. It would result in a change in the religion itself.

The Court relying on various religious commentators asserted was accepted to be authentic, said that wearing a hijab is not obligatory, and Said wearing, the hijab could be tied to culture but not to religion. Glancing at various texts the court said that the hijab was a veil meant to be a prudent means for women to leave their homes. Thus wearing the hijab was not considered essential to Islam.

In addition, the court noted that describing clothing items such as the hijab and headgear main hinders the process of emancipation of women in general and Muslim women in particular.

Emphasizing the importance of uniforms, the court said that it was a given for the institute to have the power to mandate a dress code. No reasonable mind can imagine our school without uniforms, It posited excited values documents such as ancient Indian conclude dharma Shastra and the English regal text Magna Carta to bolster its point.

Conclusion

It can be concluded as India is known for its multiplicity where numerous cultures, religions, and languages exist together with multiple tolerances. Standing as citizens of a secular country we are free to profess practice and propagate our religion as per our wish. The Karnataka High court ruled that hijab is not an essential religious practice under Islam and hence is not protected by Article 25 of the Indian Constitution. To reach this conclusion, the court referred to a commentary on the Quran and held that the ere is no “Quranic injunction” or mandate on wearing the hijab. It found that “there is sufficient intrinsic material within the scripture itself to support the view that wearing hijab has been only recommendatory if at all it is”. “It is not that if the alleged practice of wearing hijab is not adhered to, those not wearing hijab become the sinners, Islam loses its glory and it ceases to be a religion,” the court said, adding that “at the most, the practice of wearing this apparel may have something to do with culture but certainly not with religion”.

References

  1. 1954 AIR 282, 1954 SCR 1005
  2. 2016 (2) KLT 601
  3. 2018 SCC OnLine Ker 5267
  4. 2022 Latest Caselaw 407 SC

About Author – This article has been written by SHAIKH SANIYA an enthusiastic and motivated 2nd-year law student pursuing 5 years BA LLB at JAMIA MILLIA ISLAMIA.

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