Tuesday, 31 May 2022

The Hijab controversy

 The Hijab controversy

A fresh dispute erupted in Karnataka not long ago, reflecting the times we live in, and it once again involves a religious issue. In India, constant attacks on religious beliefs and religions have been a common occurrence in recent years, and these cases are setting precedents on a similar basis.

At Karnataka, a recent controversy erupted when the state government issued a GO (Government Order) prohibiting headscarves in Pre-University Colleges. According to this GO, Muslim girls wearing a hijab were refused admission to Government Colleges. The State claimed discrimination as a rationale for imposing such a ban, claiming that such clothing jeopardises equality, integrity, and public law and order.

They came about as a result of the Karnataka Education Act, 1983, which mandated that pupils wear a consistent type of clothes. The restriction began in Udupi, Karnataka, and quickly extended to all other institutions, demonstrating a similar attitude against Muslim students who wear the hijab.

As a result of the imposition of such a restriction, a Muslim girl filed a lawsuit with the Karnataka High Court, contesting the discriminatory GO. Surprisingly, this sparked a major legal debate on whether women had the right to wear hijab at educational institutions under Article 25 of the Constitution. Positive arguments were offered in response, and it was argued that wearing the hijab is an important religious practise in Islam.

The phrases "all individuals are equally entitled to freedom of conscience and the right freely to profess, practise, and promote religion" are found in Article 25(1). Given that Hijab is regarded as an essential religious practise, the right to wear it is expressly established in Article 25(1), and the State is obligated to preserve this right.

It was also argued that the freedom to wear a dress is a component of the basic right to free speech and expression granted under Article 19(1)(a), and that the threshold of "public order" to put any limitation on it under Article 19 should be exceptionally high. Although acceptable constraints to Fundamental Rights under the Constitution address public order, morals, and health, wearing a head-scarf does not appear to be covered by any of these restrictions.


To grasp the essence of religious practise, consider the well-known case of The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Shri Shirur Mutt from 1954. (Famously known as The Shirur Mutt Case).


"A religious denomination, or organisation, enjoys total autonomy in selecting what rituals and ceremonies are vital according to the precepts of the faith they believe, and no outside authority has any jurisdiction," the court said in this instance.

When the term "full autonomy" is used, it implies that members of a certain religion have entire freedom to practise everything and everything that is part of their faith, according to their own convictions. That is not the case, as evidenced by the case of Shayara Bano v. Union of India[4]. In this instance, the Supreme Court said unequivocally that an arbitrary conduct cannot be deemed a religious practise.

The following was the Court's decision:

"Because Article 25(1) is subject to Part III of the Constitution, it was likely to be in accordance with, and not in violation of, the constitutional rights provided by Articles 14, 15, and 21."

"On BakrI'd, Muslims may sacrifice any animal for religious purposes, but killing cows is not the only way to carry out that sacrifice. The slaughtering of cows on BakrI'd is neither a necessary or obligatory element of the religious practise. Article 25(1) does not cover voluntary religious practises."

As a result, the judiciary does not necessarily give the word vital religious practise an unrestricted interpretation. Keeping this in mind, the hijab is a component of the Islamic religion, which is practised and recognised all over the world.


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