Recently, six students in Karnataka’s Udupi district were prohibited from entering their college premises due to their decision to wear the hijab, a head covering traditionally worn by Muslim women in public places. This incident has reignited legal debates on the interpretation of religious freedom and raised questions about the constitutional protection of the right to wear a hijab.
Protection of Religious Freedom under the Indian Constitution
Religious freedom in India is constitutionally protected under Article 25(1). This article upholds the “freedom of conscience and the right freely to profess, practise, and propagate religion.” In essence, it guarantees a form of negative liberty which implies that the state must ensure no interference or impediment to exercising this freedom. Yet, like all fundamental rights, this right can also be restricted on the grounds of public order, morality, health, decency, and additional state interests.
This constitutional clause extends to include:
– Freedom of Conscience: The inner freedom of an individual to shape their relation with God or creatures in whatever way they wish.
– Right to Profess: The right to declare one’s own religious beliefs and faith openly and without restriction.
– Right to Practice: The right to perform religious worship, rituals, ceremonies and exhibition of beliefs and ideas.
– Right to Propagate: The right to transmit and disseminate one’s religious beliefs to others or exposition of the tenets of one’s religion.
The Essential Religious Practices Test
Over the years, the Supreme Court of India has developed the “essential religious practices” test as a practical tool to determine which religious practices can be constitutionally protected, and which can be disregarded. This legal metric, first conceptualized in the Shirur Mutt case in 1954, defines “religion” as encompassing all rituals and practices integral to a religion.
However, the “essential religious practices” test has often been critiqued by legal experts for it edges the court into theological areas. Many scholars argue that it would be more appropriate for the court to ban religious practices on grounds of public order rather than categorizing what is or isn’t essential to a particular belief system.
Application of Essential Religious Practices Test
There have been instances where the court applied this test and deemed certain practices non-essential, thus not legally protected. For instance, in a 2004 ruling, the Supreme Court concluded that the Ananda Marga sect didn’t have a fundamental right to perform Tandava dance in public streets as it wasn’t an essential practice of the sect. This test has also been applied to individual freedoms – in 2016, the court upheld the dismissal of a Muslim Air Force personnel for maintaining a facial beard, arguing that keeping a beard was not fundamental to Islamic practices.
Court Rulings On The Issue of Hijab
The question of whether wearing a hijab constitutes an essential religious practice has been presented to the courts numerous times. Here, the rulings of the Kerala High court particularly stand out due to their conflicting nature.
For example, in 2015, in response to a challenge against the dress code for All India Pre-Medical Entrance examinations, which prescribed specific types of attire, the Kerala High Court directed the CBSE to implement additional checking measures for students intending to wear clothing according to their religious customs but contrary to the dress code.
Later, the court (in Amna Bint Basheer v Central Board of Secondary Education, 2016), held that wearing a hijab is indeed an essential religious practice but did not overturn the CBSE rule. Instead, it agreed to the “additional measures” and safeguards implemented in 2015.
However, the Kerala High Court gave a different ruling in Fathima Tasneem v State of Kerala (2018), where it held that an institution’s collective rights would take precedence over an individual’s rights, thus yielding a conflicting perspective to the issue. The diverse interpretations and rulings on this matter highlight the complexities of balancing religious freedom and public order.