Hijab: A Constitutional Right or A Personal Choice

Amalendu Upadhyaya
Posted By -

On the very first day of their college, Afreen and her friends were excited to make new friends but on reaching their college they were surprised, as they were not allowed to enter the premises in Hijab. They all were upset and started thinking – How can a dress (i.e. Hijab) become a factor to deny access to education? Isn’t wearing hijab a matter of personal choice or are we being denied of our constitutional right (of education and freedom of religion)? Let us try to understand the meaning of hijab.

What is a hijab?

The hijab or headscarf is one of the most noticeable badges of Muslim women. It is a garment worn by Muslim women to cover their hair and neck area while in public. Both the Qur’an (the holy book of Islam) and Hadith (the traditions and the sayings of the prophet Mohammad) are somewhat ambiguous on proper attire. In Qur’an, the term hijab refers to a partition or curtain in the literal sense. The so-called practice is also known as veiling.

Veiling and covering of the head with a scarf i.e. hijab has been practised since the emergence of Islam and even Judaism. Veiling as a practice can be dated back to as far as 2500 B.C. for example- the women of royal families in ancient Mesopotamia, Greek and Persian empires used to cover their heads with headscarves as a sign of respectability and high status. In ancient Mesopotamia there were laws detailing which women must veil and which women may not, this depended upon the class and rank in the society. Women who were slaves or belonged to low class or rank were forbidden to veil and even faced harsh penalties if they did so.

In countries like Afghanistan and the Islamic Republic of Iran, it is mandatory for every woman to wear the hijab while on the other hand in the United States of America (USA), the Kingdom of Saudia Arabia (KSA) and in India it is not mandatory for a woman to veil is depended upon their choice.

Recently in the Udupi district of Karnataka (India), a few female students of Government (pre-university) PU college were not allowed to enter the college premises. The college authorities also refused their entry in hijab. The students addressed their concerns with the authorities but got no response. So, the students started protesting against the college authorities which soon grew into a statewide issue and then became a topic of national debate. A similar protest also emerged in various towns of Karnataka. The principal of Udupi college issued a notice against the female Muslim students that they can only enter the college campus after removing their headscarf i.e. hijab. 

As a result, several petitions were filed before the Hon’ble High Court of Karnataka in which the

Muslim students claimed their right to wear hijab in the classroom under Article 25, Article 21A, Article 21, Article 14 including Article 19 of the Indian Constitution. The Hon’ble High Court after considering all such petitions passed an interim order restraining all Muslim female students from wearing hijabs and headscarves in college campuses. The government of Karnataka justified that hijab opposes the dress code as mentioned under section 133 of the Karnataka Education Act, 1983 and issued an order for maintaining public order in the schools and colleges of Karnataka.

So far, we have discussed what actually happened now let’s try to dig down deeper and explore the legal aspects of the above-mentioned issue. Starting with our Constitution which is the Supreme law of the Land, was adopted by the people of India by making a declaration in its preamble that: “We the people of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic”.

This very first line of our preamble embodies the thoughts of our constitutional founding fathers who have stressed these words. Secularism too is one such concept that has been stressed as an important aspect of our nation and it is also deemed that Indian secularism is one of the finest versions of secularism in the world. The word ‘secular’ in layman’s terms means the state i.e. India shall have no religion of its own and makes no distinction between groups and classes etc. within society, irrespective of religious affiliation. Secularism also constitutes a part of the basic structure of the Indian constitution[1] . India being a multi-religious and multi-lingual country, it was important for our constitution makers that this spirit of respect for every religion remains intact in the hearts and minds of the citizens.

Secularism has different connotations when it comes to the western model of politics. The term owes its origin to the French revolution were due to an increased influence of the religious practices of the church on the state, there originated a need to have a government free from religious influence, thus here secularism meant a complete separation of both church and the state, where the government would not have its legs in the church or the clergy and similarly the church would not have any influence in the day to day government administration. 

In India, however this water-tight model of secularism was not something that could’ve been applicable, rather pluralism is a more suited word for India. Pluralism is a political philosophy wherein it seeks to achieve the coexistence of various religions where every person of different religion plays a role irrespective of his religion and there is diversity and acceptance of different lifestyles and practices. The government is not completely free from religious influence, it undertakes a plethora of activities for the upliftment of various minority religions.

Hijab is an important practice amongst Muslim women and has long been a topic of ridicule and controversy in several countries. Many women do it by will and some are insisted on do hijab by their family members and relatives. The constitution of India guarantees the freedom of conscience and the right to profess, practice and propagate religion while reserving the state’s right to interfere with the religious matter only if it involves the issue relating to public order, morality and health (Article 25) and thus hijab too is consistent with these rights. How a person wants to dress up should not be a question to be decided by the higher authorities or anyone else. In Ratilal’s case (supra) Hon’ble Supreme Court of India observed that the religious practices or performance of acts in pursuance of religious belief are as much part of religion and no outside authority has any right to say that these are not the essential part of religion.

India has long been an example or religious freedom and it should not become a place where just a piece of cloth becomes a matter of national debates and vile enough to wedge a rift between two or more communities. The religious practices and activities involving huge masses have been inherent in our country where people celebrate their festivals and occasions together. Further, the law as laid down by the Hon’ble Supreme Court of India in the case called Shirur Mutt case[2], it was held that freedom of religion in our constitution is not confined to religious beliefs only it extends to religious practices also.

The manner in which the college authorities had ousted the female child not only creates a stigma amongst her classmates but also amongst the children of the entire college which in turn will affect their psychological health as well as their future prospects. The college has also curtailed the right to education (Article 21A) on the sole ground of religion is a major blow with critics calling it as politically motivated. By doing so the state government has failed in its duty to realise the education to the girl child. 

It was held by the Hon’ble High Court of Kerala in 2016[3] that the right to have the choice is based on the religious injunction is a fundamental right protected under Article 25 when the such prescription of dress is an essential part of religion, the right can be negated only in any of the circumstances referred under Article 25 (1), hence the girls were allowed to appear in the pre-medical examination while wearing hijabs and full sleeves cloths thus providing a clear picture on the question of right.

Now let’s turn over to the question of choice which comes under Article 21 of the Indian Constitution i.e. right to protection of life and personal liberty. Freedom of choice is an essence of fundamental rights in fact the preamble provides for “liberty of thought(choice), expression, belief, faith and worship”. If women have right to wear hijab, then it is their choice whether to put the hijab on or not. As the uniform of a female student itself includes a scarf (Dupatta) then it is their personal choice either to put it on the shoulders or on the head. It cannot be ignored that India being a country with its varied and diverse religions, cultures and customs it cannot be said that a particular dress code be followed. Schools owned and run by the government cannot make the rules for the dress code that would end up excluding the girls from a particular section of society. 

Hon’ble Chief Justice of India D.Y. Chandrachud and Hon’ble Justice Nariman pointed out in an argument that religion has to be subject to the fundamental rights and if you have Article 14 then that should trump anything else, Muslim girls under this article do have a right.

The freedom of conscience is also guaranteed in the constitution and if you conscientiously hold a belief and there is a justification for that in the text (religious texts) further there is evidence of large practice across the nation, then if you deny such practice by legislation or by any other means then the state should give a strong justification for such denial.

In a multicultural and diverse society like India, there are bound to be some disagreements. There will be few who will think that hijabs are a way to suppress the freedom of women to dress and it tries to put forward a common dress code for all whether one likes it or not. But again, this is only one side of the coin and the choice actually lies with the believer. As our Indian version of secularism tries to accommodate diverse religious, and cultural variations because the state has no official religion, thus it leaves space for the citizen to exercise their freedom without compromising with public order and morality.

To conclude we can say that in a pluralistic society like India, the better approach to nurturing secularism is to expand the scope of religious freedom rather than strictly practicing state neutrality and to constantly strive for attaining communal peace and harmony, fraternity, dignity and welfare for all by guarding our nation from the divisive forces. Because our founding fathers thought that freedom is our right and not just a choice. 

Mohammad Abbas

Mohammad Saalim

(Law Students)

[1] S.R. Bommai v Union of India [1994] AIR 1918

[2] Hindu Religious Endowments, Madras v Sri Lakshmindra Thietha Swamiar of Sri Shirur Mutt AIR 1952 Mad 613

[3] Amnah Bint Basheer v Central Board of Secondary Education [2015] Writ Petition (Civil) No. 6183/2016


Post a Comment


Post a Comment (0)