Relevance: GS-2: Indian Constitution—historical underpinnings, evolution, features, amendments, significant provisions and basic structure

Key Phrases : Article 25, Article 21, Freedom of Religion, Hijab Controversy, Essential Practice Test, Court’s Stand on Issue of Hijab,

Why in News ?

• The action of some pre-university colleges in Karnataka refusing entry to Muslim girl students wearing hijabs, or head-scarves, has now become a national controversy.

Key Highlights

• While the girls have been protesting against being denied access to education, the counter-protests by a section of Hindu students wearing saffron shawls and turbans have led to a tense situation outside some campuses.
• The action of the college where the row broke out in Udupi is now being questioned in the Karnataka High Court.
• The court, by an interim order, has directed that students should not wear attire linked to any religion until it resolves the legal questions arising from the issue.

Issues

• Whether students can be kept out of educational institutions merely because they are wearing a piece of clothing indicating their religion?
• Is the denial of entry a violation of their freedom of conscience and freedom to practise their religion under Article 25?
• Whether educational institutions can bar religious attire as part of their power to prescribe uniforms for students?
• Whether the ban on such attire will come within the power to restrict freedom of religion in the interest of public order, health, and morality. ?
• Whether the denial of entry into schools amounts to violation of the students’ right to education under Article 21A?

Government’s Arguments

• The Government is of the view that compelling a student to remove the head-scarf is not a violation of Article 25.
• Going by the Government’s stand, the issue can also be framed differently:
  • Whether the wearing of head-scarves will have an adverse impact on law and order by pitting two communities against one another, and thereby, enable the Government to prohibit religious attire in the interest of public order – one of the grounds on which a right under Article 25 can be curbed.

Muslim Students’ Arguments

• They argued that wearing a hijab is an expression protected under Article 19(1) (a) of the Constitution which guarantees the right to freedom of speech and expression.
• A student silently wearing a hijab/headscarf and attending class cannot in any manner be said to be a practice that disturbs “public order” and is only a profession of their faith.
• They also argued that the ban on headscarves violates the fundamental right to equality since other religious markers, such as a turban worn by a Sikh, are not explicitly prohibited
• The rules prescribed wearing of a dupatta for women and the state cannot dictate the manner of wearing that dupatta if a student wishes to cover her head with it.

Court’s Stand on Issue of Hijab

• All India Pre-Medical Entrance Exam Case (2015)
  • For the All India Pre-Medical Entrance Exam, at least two petitions were filed in 2015 with Kerala High Court.
  • They challenged the prescribed dress code that stated candidates should wear light clothes with half sleeves not having big buttons.
  • According to CBSE’s rationale, the rule was put in place to prevent candidates from using “unfair methods” by concealing objects within their clothing.
  • However, the Kerala High Court has ordered the CBSE to put in place additional measures to check students who “intend to wear a dress according to their religious custom but contrary to the dress code”.
• Amna Bint Basheer v Central Board of Secondary Education (2016)
  • The Kerala High Court investigated the matter in further depth.
  • Even though the Court ruled that the wearing of a headscarf is an essential religious practise, the CBSE rule remained in place.
  • The “additional procedures” and precautions put in place in 2015 were approved by the court once more.
• Fathima Tasneem v State of Kerala (2018)
  • When it came to individual rights, the single bench of Kerala HC decided that collective rights of an institution should be given precedence.

Essential Religious Practices Test

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.

• Origin of the Essential Practice Doctrine
  • The ‘essential practice’ doctrine can be traced to a 1954 decision of the Supreme Court ‘Shirur Mutt’ case.
  • The SC had held in the Shirur Mutt case that ,``In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself,”.
• Hence, some acts obtained constitutional protection by being declared “essential” to the practice of that religion and some were denied protection on the ground that they were not essential to it.

Cases Where the Court Has Applied the Test

• Case: Tandava’ a ritual dance (1983)
  • The Supreme Court upheld the police decision to disallow ‘Tandava’, a ritual dance performed with a skull and a knife, in public places as part of a procession by Ananda Margis.
  • SC observed that the ‘Tandava’ was not an essential religious practice among those in the sect.
• Case: Sardar Syedna Taher Saifuddin Saheb vs. Bombay (1962)
  • The Supreme Court struck down a law that prohibited the head of the Dawoodi Bohra community from excommunicating members.
  • The majority ruled that the power of excommunication exercised by the religious head on religious grounds was part of the management of affairs on religious matters, and the Act infringed on the community’s rights.
• Case: Discharging of a Muslim Airman from Airforce (2016)
  • A three-judge Bench of the Supreme Court upheld the discharge of a Muslim airman from the Indian Air Force for keeping a beard.
  • Judges distinguished the case of a Muslim airman from that of Sikhs who are allowed to keep a beard.
    • The court essentially held that keeping a beard was not an essential part of Islamic practices.
  • Regulation 425 of the Armed Force Regulations, 1964, prohibits the growth of hair by Armed Forces personnel, except for “personnel whose religion prohibits the cutting of hair or shaving of face”.
• Case: Sabarimala Issue (2018)
  • The majority ruled that the bar on entry of women in the age-group of 10 to 50 was not an essential or integral part of the religion.
  • SC denied the status of a separate religious denomination of devotees of Lord Ayyappa.

Criticism Against the Essential Practice Test

Only distinguish a matter of religion from a matter other than religion

• The first criticism is that it was never intended to be a test to find out if a particular practice is essential to the practice of the religion but was only made to distinguish a matter of religion from a matter other than religion.
  • However, a long line of judicial decisions seem to endorse the applying of this test to dispose of cases.

Ecclesiastical Exercise

• The second criticism is that the doctrine of essentiality appears to allow courts to go deeply into the scriptures and tenets of a religion or a religious denomination to find out if the practice or norm that is at the heart of the issue is essential.
  • This is seen as a theological or ecclesiastical exercise, which courts are forced to wade into.

Way Forwards

• A more reasonable approach will be to apply the test of constitutional morality and legitimacy to the issue at hand.
• Applying the principles of equality, dignity and civil rights to a particular practice may be better to decide the constitutionality of a practice than a theological enquiry.

Source: The Hindu, Indian Express

Mains Question:

Q. Discuss the significance of freedom of religion under the Indian Constitution.