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Hijab Controversy in India Perspective from Indian Constitution

 Hijab Controversy in India: Perspective from Indian Constitution 

 

What is “HIJAB”? 

Hijab refers to head coverings worn by Muslim women. While Islamic head coverings can come in many forms, hijab often specifically refers to a cloth wrapped around the head and neck, covering the hair but leaving the face visible. 

 

What hijab controversy is all about and why it is in news? 

Recently in Udupi(Karnataka), some colleges ban hijab in class room and restricted some girls to enter college wearing hijab, from there this hijab controversy takes its rise, as girls were not allowed to attend classes while wearing hijab so they started protesting in college campus for the Right to Profess Religion and the protest became huge day by day, when nothing happens, some girls filed WRIT Petition under article 226 in Karnataka High court regarding the violation of fundamental rights. And then it became hot topic of debate, to what extent Right to Freedom of Religion extents and Right to Education. 

 

Where the related Provisions are mentioned in Constitution? 

 In Indian constitution it is given under article 25 - 28, Right to Religion. And in specific article 25 deals with Freedom of conscience and free profession, practice and propagation of religion. 

The Constitution (Eighty-sixth Amendment) Act, 2002 inserted Article 21-A in the Constitution of India to provide free and compulsory education of all children in the age group of six to fourteen years as a Fundamental Right in such a manner as the State may, by law, determine.  

 

Right to Freedom of Religion (Articles 25 - 28) 

The Right to Freedom of Religion is guaranteed to all Indians by the Constitution under Articles 25 to 28. 

Right to Freedom of Religion 

The Constitution of India guarantees the right to freedom of religion to not only individuals but also religious groups in India. This is enshrined in Articles 25 to 28.  

Article 25 (Freedom of conscience and free profession, practice, and propagation of religion) 

Article 25 guarantees the freedom of conscience, the freedom to profess, practice, and propagate religion to all citizens. 

  • The above-mentioned freedoms are subject to public order, health, and morality. 

  • This article also gives a provision that the State can make laws: That regulates and restricts any financial, economic, political, or other secular activity associated with any religious practice. 

  • That provides for the social welfare and reform or opening up of Hindu religious institutions of a public character to all sections and classes of Hindus. Under this provision, Hindus are construed as including the people professing the Sikh, Jain, or Buddhist religions, and Hindu institutions shall also be construed accordingly. 

  • People of the Sikh faith wearing & carrying the kirpan shall be considered as included in the profession of the Sikh religion. 

Article 26 (Freedom to manage religious affairs) 

This Article provides that every religious denomination has the following rights, subject to morality, health, and public order. 

  1. The right to form and maintain institutions for religious and charitable intents. 

  2. The right to manage its own affairs in the matter of religion. 

  3. The right to acquire the immovable and movable property. 

  4. The right to administer such property according to the law. 

Article 27 (Freedom as to payment of taxes for promotion of any particular religion) 

According to Article 27 of the Constitution, there can be no taxes, the proceeds of which are directly used for the promotion and/or maintenance of any particular religion/religious denomination. 

Article 28 (Freedom as to attendance at religious instruction or religious worship in certain educational institutions) 

This article permits educational institutions that are maintained by religious groups to disseminate religious instruction. 

  • This provides that no religious instruction shall be provided in State-run educational institutions. 

  • Educational institutions administered by the State but that were established under any endowment or trust which requires that religious instruction shall be imparted in such institutions are exempt from the above clause (that no religious instruction shall be provided). 

  • Any person who attends any educational institution recognized by the State or receiving State aid shall not be required to participate in any religious instruction that may be imparted in such institution, or also attend any religious worship in such institutions unless he/she has given consent for the same. In the case of minors, the guardians should have given consent for the same. 

 

Right to Education 

The Article 21a makes education a fundamental right of every child between the ages of 6 and 14 

and specifies minimum norms in elementary schools. It requires all private schools to reserve 25% 

of seats to children (to be reimbursed by the state as part of the public-private partnership plan). Kids are admitted in to private schools based on economic status or caste based reservations. It also prohibits all unrecognised schools from practice, and makes provisions for no donation or capitation fees and no interview of the child or parent for admission. The Act also provides that no child shall be held back, expelled, or required to pass a board examination until the completion of elementary education. There is also a provision for special training of school drop-outs to bring them up to par with students of the same age. 

 

 

Judgement given by the Karnataka High Court: 

 

“Hijab not an essential practice of Islam, rules Karnataka High Court” 

A three-judge Bench of the High Court of Karnataka pronounced its verdict on the petitions related to the row over wearing hijab in educational institutions 

Wearing of hijab (head scarf) by Muslim women does not form a part of essential religious practices in Islamic faith and it is not protected under the right to freedom of religion guaranteed under Article 25 of the Constitution of India, the High Court of Karnataka declared on March 15.  

The court ruled that prescription of school uniform does not violate either the right to freedom of speech and expression under Article 19(1) (a) or the right to privacy under Article 21 of the Constitution, and the restriction against wearing of hijab in educational institutions is only a reasonable restriction constitutionally permissible, which the students cannot object to. 

The court upheld the legality of the Karnataka Government’s February 5 order prescribing wearing of uniforms in schools and pre-university colleges under provisions of the Karnataka Education Act, 1983.The judgment was delivered by a three-judge bench comprising Chief Justice Ritu Raj Awasthi, Justice Krishna S. Dixit and Justice J.M. Khazi while rejecting all the petitions filed by nine Muslim girl students studying in two government pre-university colleges in Udupi district. 

The petitioners had argued that wearing of hijab is a part of essential religious practice as per Islamic faith and college authorities cannot prevent them from attending classes wearing hijab. 

 

 

Conclusion 

India is full of diversity in terms of religion and culture it is a learning point that how after having lots of diversity India is still united. A big credit goes to our judiciary as it is considered as temple of justice and protector of rights, we all have lots faith and ambition from our courts.   

Recently in Udupi, Karnataka some colleges ban hijab in class room and restricted some girls to enter college with hijab, from there this hijab controversy takes its rise, as girls were not allowed to attend classes while wearing hijab so they started protesting in college campus in the name of right to profess religion and when nothing happens, some girls filed WRIT Petition under article 226 in Karnataka High court regarding the violation of fundamental rights, as in Indian constitution it is given under article 25 - 28, Right to Religion. And in specific article 25 deals with Freedom of conscience and free profession, practice and propagation of religion.  

 

The petitioner argued to high court that wearing hijab is an important and inseparable religious practice and plead to the court to direct the concerned authorities and colleges to change their rules. While the pleading was going on in the court, protest was not getting stopped and also some Hindu students started wearing saffron scarf in protest against the Muslim protesters and then a video got viral in which boys were teasing a girl who was wearing hijab. This type of violence is not acceptable because of this violence it was ordered to colleges to shut down for 3 to 4 days. 

In the verdict of High court three bench Judge give the judgement by upholding the ban of hijab by the state government and stated that colleges have discretion to select the uniform. In supporting the judgement court said that in Islam or in Quran it is nowhere mention that wearing hijab is an essential practice and also said that the reason behind wearing hijab is discrimination to women maybe they are wearing hijab by their own choice but it cannot be determined that they are wearing hijab by their own or they are been forced by the parents.  

My viewpoint regarding this issue is, I believe High court took a really hard step which can agitate violation but this is something which should be done because this is a discrimination against the women to force them to wear hijab or scarf but it should be totally fine if they want to wear it by their own will because everyone has right to profess his religion. But it is really hard to determine, is the one is wearing hijab by her own will or by force  

We can do a big debate on ‘do hijab makes the women oppressed’ because we see many arguments have been given, if the women are oppressed then how they are coming forward for the protest and for their rights and why only ban hijab and not turban wear by Sikhs, Tikal wear by Hindu, cross wear by Christians and many more, these are just examples of arguments given by the peoples. Now it seems that, this case is going towards the Supreme Court for appeal. But further a huge debate is going on this topic worldwide, many countries has already ban practice of religion in schools or in educational institute because they believe that education institute is for education and not for practicing any religion, everyone should be equally treated.     

 

 


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