After six students were banned from entering a college in Karnataka’s Udupi district for wearing a hijab last month, the row over whether educational institutions can impose a strict dress code that could interfere with rights of students has spilled to other colleges in the state. The issue throws up legal questions on reading the freedom of religion and whether the right to wear a hijab is constitutionally protected.
Dimensions of the Article:
- How is religious freedom protected under the Constitution?
- How have courts ruled so far on the issue of a hijab?
- Amna Bint Basheer v Central Board of Secondary Education (2016),
- Fathima Tasneem v State of Kerala (2018)
How is religious freedom protected under the Constitution?
- Article 25(1) of the Constitution guarantees the “freedom of conscience and the right freely to profess, practise and propagate religion”.
- It is a right that guarantees a negative liberty — which means that the state shall ensure that there is no interference or obstacle to exercise this freedom.
- However, like all fundamental rights, the state can restrict the right for grounds of public order, decency, morality, health and other state interests.
- Over the years, the Supreme Court has evolved a practical test of sorts to determine what religious practices can be constitutionally protected and what can be ignored.
- In 1954, the Supreme Court held in the Shirur Mutt case that the term “religion” will cover all rituals and practices “integral” to a religion.
How have courts ruled so far on the issue of a hijab?
- In 2015, at least two petitions were filed before the Kerala High Court challenging the prescription of dress code for All India Pre-Medical Entrance which prescribed wearing “light clothes with half sleeves not having big buttons, brooch/badge, flower, etc. with Salwar/Trouser” and “slippers and not shoes”.
- Admitting the argument of the Central Board of School Education (CBSE) that the rule was only to ensure that candidates would not use unfair methods by concealing objects within clothes, the Kerala HC directed the CBSE to put in place additional measures for checking students who “intend to wear a dress according to their religious custom, but contrary to the dress code”.
- “If the Invigilator requires the head scarf or the full sleeve garments to be removed and examined, then the petitioners shall also subject themselves to that, by the authorised person. It is also desirable that the C.B.S.E issue general instructions to its Invigilators to ensure that religious sentiments be not hurt and at the same time discipline be not compromised,” Justice Vinod Chandran ruled.
Amna Bint Basheer v Central Board of Secondary Education (2016),
- The Kerala HC examined the issue more closely. Justice P B Suresh Kumar, who allowed the plea by the student, held that the practice of wearing a hijab constitutes an essential religious practice but did not quash the CBSE rule.
- The court once again allowed for the “additional measures” and safeguards put in place the previous year.
- But both these cases involve restrictions placed on the freedom of religion for a specific purpose — to ensure a fair examination process — and the CBSE had cited a resource crunch to check every candidate if they allowed autonomy in choosing their dress.
Fathima Tasneem v State of Kerala (2018)
- A single Bench of the Kerala HC held that collective rights of an institution would be given primacy over 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 full-sleeved shirt.
- The school that refused to allow the headscarf is owned and managed by the Congregation of the Carmelites of Mary Immaculate (CMI) under CMI St Joseph Province.
- The father appealed before a division Bench of the High Court. The division Bench headed by Justice Vinod Chandran dismissed the appeals as it was “submitted that the appellants-petitioners are not now attending the School and are no more in the rolls of the respondent-School.”
-Source: Indian Express