Freedom of religion and dress, explained
After six students were banned from entering a university in the Udupi district of Karnataka for wearing the hijab last month, the dispute over whether educational institutions can impose a strict dress code that could interfere with students’ rights has rolled over to other colleges in the state. The issue raises legal questions about the reading of freedom of religion and whether the right to wear a hijab is constitutionally protected.
How is religious freedom protected by the Constitution?
Article 25(1) of the Constitution guarantees “freedom of conscience and the right freely to profess, practice and propagate one’s religion”. It is a right that guarantees a negative freedom — which means that the state must ensure that there is no interference or obstacle to the exercise of this freedom. However, like all fundamental rights, the state can restrict the right for reasons of public order, decency, morality, health and other state interests.
Over the years, the Supreme Court has developed a sort of practical test to determine which religious practices can be constitutionally protected and which can be ignored. In 1954, the Supreme Court ruled in the Shirur Mutt case that the term “religion” will cover all rituals and practices “integral” to a religion. The test for determining what is integral is called the “essential religious practices” test.
What is the essential religious practices test?
“In the first place, what constitutes the essential part of a religion must above all be determined by reference to the doctrines of that religion itself”, concluded the SC in the Shirur Mutt case. Thus, the test, a judicial determination of religious practices, has often been criticized by legal experts for pushing the court to delve into theological spaces.
In the test’s critique, scholars agree that it is better for the court to prohibit religious practices for public order than to determine what is so essential to a religion that it must be protected.
In several cases, the court has applied the test to prohibit certain practices. In a 2004 decision, the Supreme Court ruled that the Ananda Marga sect had no fundamental right to perform the Tandava dance in public streets, as it was not an essential religious practice of the sect.
Although these issues are widely considered community-based, there are cases in which the court has applied the test to individual liberties as well.
For example, in 2016, a three-judge bench of the Supreme Court upheld the dismissal of a Muslim airman from the Indian Air Force for keeping a beard. Judges TS Thakur, DY Chandrachud and L Nageswara Rao distinguished the case of a Muslim airman from that of Sikhs allowed to keep beards.
Regulation 425 of the Armed Forces Regulations 1964 prohibits hair growth for armed forces personnel, with the exception of “personnel whose religion prohibits cutting their hair or shaving their faces”. The court essentially held that keeping a beard was not an essential part of Islamic practices.
The court did not examine religious practices as required by the Shirur Mutt case, but referred to a contribution from lead attorney Salman Khurshid.
“During the hearing, we asked Shri Salman Khurshid, Scholarly Senior Counsel appearing on behalf of the Appellants, whether there is a specific mandate in Islam that “forbids cutting one’s hair or shaving one’s hair of the face.” The learned counsel… indicated that on this aspect, there are various interpretations, one of which is that it is desirable to maintain a beard. that the Appellant professes a religious belief which would bring him within the ambit of Rule 425(b) of the Rules which applies to “staff whose religion prohibits cutting their hair or shaving their faces”. “says the verdict.
How have the courts ruled on the hijab issue so far?
Although this has been repeatedly submitted to the courts, two sets of decisions by the Kerala High Court, particularly on the right of Muslim women to dress according to the principles of Islam, provide conflicting answers.
In 2015, at least two petitions were filed in the Kerala High Court challenging the India-wide pre-medical entry dress code prescription which prescribed wearing “light half-sleeved clothes without large buttons, brooch/badge, flower, etc. with Salwar/Pants” and “slippers not shoes”.
Admitting the argument of the Central Board of School Education (CBSE) that the rule was only intended to ensure that candidates would not use unfair methods by concealing objects in clothing, Kerala HC ordered the CBSE to put in place additional measures to control students who “intend to wear an outfit that is in accordance with their religious custom, but contrary to the dress code”.
“If the invigilator demands that the headscarf or long-sleeved clothing be removed and examined, the applicants must also comply, by the authorized person. It is also desirable that the CBSE give general instructions to its overseers to ensure that religious feelings are not hurt and at the same time discipline is not compromised,” said Justice Vinod Chandran.
In Amna Bint Basheer v Central Board of Secondary Education (2016), Kerala HC took a closer look at the issue. Judge PB Suresh Kumar, who allowed the student’s plea, ruled that the practice of wearing the hijab was an essential religious practice, but did not strike down the CBSE rule. The court re-authorized the “additional measures” and safeguards put in place the previous year.
But both of these cases involve restrictions on freedom of religion for a specific purpose – to ensure a fair review process – and the CBSE had cited a lack of resources to check each candidate whether they allowed autonomy in choice. of her dress.
However, on the issue of a school prescribed uniform, another bench ruled differently in Fathima Tasneem v. State of Kerala (2018). Only one bench in Kerala HC held that the collective rights of an institution would take precedence 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 long-sleeved shirt. The school that refused to allow the headscarf is owned and operated by the Congregation of the Carmelites of Mary Immaculate (CMI) under the CMI St Joseph Province.
“Applicants cannot seek the imposition of their individual right against the broader right of the institution,” Judge Muhamed Mustaque said.
The father appealed to a division bench of the High Court. The Divisional Bench headed by Judge Vinod Chandran dismissed the appeals as it was “submitted that the Appellant-Applicants no longer attend school and are no longer on the Respondent School’s rolls”.
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