By Ravi Singh Chhikara & Navneet Singh

The ban on Hijab in schools and colleges in Karnataka has caused huge uproar and protests in the state and beyond. The state government invoked Section 133(2) of the Karnataka Education Act 1983, which stipulates that a uniform style of clothing must be worn by all students on a compulsory basis. The ongoing protests have brought forward a constitutional issue before India that if hijab will, will all religious clothing disappear from educational institutions? Well, if it is an essential religious practice, the Constitution requires the government to restrict all other religious attire as well.

Now let’s see how religious clothing is constitutionally protected and when can it be banned in educational institutions?

It is trivial to say that every person, including a student, also has the right under Article 25 of the Constitution to wear their religious clothing in accordance with the instructions of their religion. However, this right to wear religious clothing, even if it is an essential religious practice, is subject to public order, good morals, health and other fundamental rights guaranteed by Part III of the Constitution. In the absence of any condition referred to in Article 25(1), an essential practice cannot be regulated or restricted.

Essential of hijab in the Muslim religion

There is a clear and decisive consensus on the mandate of the hijab for Muslim women. The part governing the headgear is verse 59 of Surah Al Ahzab. The reference to jilbab in this verse indicates that the Islamic dress code for women consists not only of a headscarf which covers the head, neck and chest, but also includes the general attire which should be long and loose. Word jilbab in this context should not be interpreted as a modern usage of the word. According to the Lisan al Arab (an Arabic dictionary par excellence), jilbab refers to the khimar or scarf. This verse specifically states that Muslim women must wear the headscarf to be known and recognized as believing women and to be protected.

In addition, one can refer to verse 31 of sura Noor. The context in which this verse was revealed must be understood to fully understand the significance of the verse. According to Abu Abdullah Qurtubi, the 13th century mufassir (a scholar who interprets the Quran), women at the time of revelation wore their head coverings tied behind their necks, leaving the upper chest, neck and ears bare as was the practice of Christians in the epoch, while exposing the opening (singular Jaybplural Juyub which translates to “breasts” in the verse above) at the top of the robe. The Quranic revelation confirmed the practice of covering the head, understood from the use of the word “khimar” in the verse (which means covering the head, which was already in practice), and also explained that the custom of the time was not sufficient, and that women now had to tie the existing head covering in front and let it fall to conceal the neck and the opening of the dress at the top. When we talk about the hijab as a cultural practice, it is indeed a pre-Islamic religious and cultural practice, as there is clear evidence that Christian and Jewish women before Islam also wore a similar head covering. This tradition was practiced by Christian women until the 20th century. Islam perfected this practice when Allah (SWT) revealed the above verse, requiring that the existing head covering should cover more than just the head, but also the neck, upper chest and ears. Allah (SWT) has given clear reasoning in the above verse as to why Muslim women wear hijab – in order to be known and not disturbed.

Moreover, a Hadith, saying of the Prophet, narrated by Thirmidi, states:

Therefore, Muslim women wear hijab because the Koran unambiguously commands and obliges Muslim women to do so. An analysis of Quranic injunctions and Hadiths shows that it is a farz (compulsory) to cover the head and wear a robe with long sleeves except for the face; exposing the body otherwise is forbidden (haram). The above discussions show that the covering of the head and the wearing of long-sleeved dress by women was treated as an essential part of the Islamic religion, as also argued by Kerala HC in Amnah Bint Basheer and Another c. Central Board of Secondary Education (CBSE), New Delhi and another. It also seems to be fundamental to the Islamic religion because not wearing the hijab is considered haraam (forbidden). Prohibit women from wearing hijab against their religious commandments would surely affect their religious faith. Thus, Article 25(1) protects such a dress code prescription.

We also observed that wearing hijab has not disturbed public order in any educational establishment, has not been considered immoral and does not harm the health of any third party. Moreover, it does not infringe any fundamental right of a third party guaranteed by Part III of the Constitution. Thus, if a Muslim student wants to wear hijab in any educational institution, she has the right to do so under Article 25.

Effect on religious clothing of other religious clothing

Section 14 guarantees everyone the right to equality. However, a reasonable classification can be made by the government in order to achieve a specific objective. Now take other religions. In Sikhism, there are five Articles of Faith, known as the “Five Ks”, which Sikhs are required to wear at all times and in all places, including educational institutions, to demonstrate their religious faith. These include Kesh (uncut hair), Kara (a steel bracelet), Kangha (a wooden comb), Kachera (cotton underwear) and Kirpan (steel sword). Wearing the five Ks is rightly considered an essential religious practice under Article 25 and therefore Sikhs are permitted to wear these five Ks in educational institutions.

Similarly are placed the Muslim students who want to wear hijab in educational institutions. The wearing of hijab falls within the scope of essential religious practice under Article 25. Restricting such practice by educational institutions on the basis of Article 19(1)(g) would have an equal effect on other religions because both are on an equal pedestal. There seems to be no reason as to how hijab is different from other people’s religious clothing. Thus, it seems that if the port of hijab by female Muslim students is limited, it would affect other religions, specifically Sikhs.

Conclusion

People symbolically use religious clothing to express their religious beliefs and compliance with religious authority. We must understand that if the wearing of religious clothing is made compulsory at all times by one’s religion, which at the same time poses no threat to others or infringes on the fundamental rights of anyone, the State does not have the right to interfere with such practice.

The authors are lawyers of the High Court of Delhi. Ravi Singh Chhikara tweets @ravi_chhikara