A college in Udupi in Karnataka has been in the news for not allowing a few hijab-clad female students to attend the classes. In the neighbouring state Kerala, the government issued an order saying that girl students in the Student Police Cadet (SPC) Project will not be allowed to wear hijabs or full-sleeve dresses, which is in variation with the standard uniform prescribed for the cadets. The order was issued based on a direction by the Kerala High Court. It was a student who moved the court claiming that her right to wear a hijab is protected under Article 25(1) of the Constitution. The court had then asked the government to take a decision on the matter. While rejecting the student’s plea to permit hijab, the government also said that religious symbols are not allowed in the SPC.
Similar controversies have occurred in the recent past. In 2016, a writ petition was filed challenging the dress code for the All India Pre-Medical Test. The code was intended to check the massive malpractice allegedly taking place. Justice A Muhamed Mustaque of the Kerala High Court, though refused to interfere with the dress code, ordered that the code will not be enforced against the candidates who are unable to wear it due to “injunctions of their faith”. In a subsequent case, however, the judge did not show this indulgence. In Fathima Thasneem vs State of Kerala (2018), the court categorically said that the management of a private aided school has every right to disallow head scarfs and full sleeve shirts in the classroom since those were inconsistent with the prescribed dress code. The court said: “if the management is not given free hand to administer and manage the institution, that would denude their fundamental right.”
In Tinker vs Des Moines (1969), the US Supreme Court dealt with the legality of a public school authority suspending a group of students for wearing black armbands as a symbol of silent protest against the Vietnam war. The court took a liberal view favouring the students and said that "it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." The choice of clothing is a form of expression and extra-constitutional limitations on this freedom are often unacceptable.
Article 25(1) of the Constitution is generous in its text and liberal in its prescription.
Dr Ambedkar who stringently criticised the exploitation under the garb of religion, did not underestimate the influence of it in Indian society. He, on the other hand, emphasised the importance of religious freedom. As lawyer Abhinav Chandrachud remarked, ours is a ‘republic of religion’.
According to Article 25, freedom of conscience and the right to freely profess, practise and propagate religion can be restricted only by justifications based on public order, morality, health and other provisions related to the rights in part III of the Constitution. The first explanation to this Article says that the Sikhs can wear or carry Kirpan as it forms a part of the profession of their religion. Beyond the boundaries, the Supreme Court of Canada in Multani case (2006) upheld the right of a Sikh student to wear a Kirpan while attending the class, without harming others. The Indian judicial approach too has been equally liberal. In Bijoe Emmanuel vs State of Kerala (1986), students belonging to the denomination of Jehovah’s Witnesses were allowed to abstain from singing the national anthem that they claimed to contradict their religious faith. In
S R Bommai vs Union of India (1994), the Supreme Court said that the state should free itself from religious affinity.Religious freedom is the hallmark of pluralism and inclusiveness. It is meant to advance social harmony and diversity. While legitimate restrictions are to be accepted, irrational and motivated intrusion into religious notions should be averted. Even in countries where private discrimination laws are stronger, religious rights were given due prominence. Thus, in Masterpiece Cakeshop Pvt Ltd case (2018), a baker’s refusal to provide a wedding cake for a same-sex couple was validated by the US Supreme Court accepting his religious beliefs and convictions. In Ashers Baking Company Ltd (2018), the UK Supreme Court endorsed another baker’s refusal to supply a cake by inscribing a message supporting gay marriage.
As professor Heiner Bielefeldt says, the object of “reasonable accommodation” for religious freedom is “not to privilege religious or belief-related minorities at the expense of the principle of equality” but “to appropriately translate the principles of equality and non-discrimination into different societal contexts”. (Human Rights Quarterly, February 2013). We need to realise that the idea of fundamental rights is intended to enhance the level of tolerance and mutual respect among the people.
But the Indian tragedy is that the religious fanatics have been keen to use such controversies with a narrow and sectarian goal. Hijab, if it does not cover the face totally, need not be banned in a classroom. It does not harm others. At the same time, a teacher might want to see the face of the students for effectively conducting the class. A head veil is certainly permissible, whereas a face veil might not be. We need to strike a balance, whenever possible. A society riddled with communal polarisation needs to cultivate a constitutional mindset while examining the issues of religious freedom. Pluralism and diversity are values that the country has tried to cultivate since independence. Religious fanaticism, whether by the majority or the minority, has only damaged the secular mosaic.
Kaleeswaram Raj
Lawyer, Supreme Court of India
(kaleeswaramraj@gmail.com)
(Tweets @KaleeswaramR)