The interpretative answer to the hijab row

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The interpretative answer to the hijab row

  • A number of Muslim girl students in Udupi, Karnataka, have been refused entry into their college.
  • The administration objects to them covering their heads with a hijab.

Setting bounds of Religious freedom

  • One of the first great religious cases interpreted by the new Supreme Court, under the new Constitution, came from Udupi.
  • In the Shirur Mutt case of 1954, the Court ruled, “….what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.”
  • Ever thereafter, the judgment in Shirur Mutt has remained the focal point of constitutional discussion on religious freedoms.
  • The “essential religious practices” test appeased traditionalists by assuring them that the Court would be sympathetic to their respective religious faiths.
  • It also supported state-sponsored reform by leaving one agency of the state — the judiciary — with the power to determine and pronounce upon religious practice and belief.

Religious practice

  • Since it was first propounded, the “essential religious practice” test has been problematic.
  • How is the Court to determine what an ‘essential practice’ is? Should it ‘rely on religious leaders’?
  • Should it ‘call for evidence’?
  • Should judges ‘pursue these questions on the basis of their own research’?
  • The enquiry has moved from deciding what is essentially religious to what is an essential religious practice.
  • Donning such a role is not an easy task when the Court is called upon to decide whether a practice does nor does not form an essential part of a religious belief.
  • Scriptures and customs merge with bewildering complexity into superstition and dogma.
  • Decisions of the Court have attempted to bring in a measure of objectivity by holding that the Court has been called upon to decide on the basis of the tenets of the religion itself.
  • But even that is not a consistent norm.
  • In the case of the hijab, there is no doubt that an observant Muslim woman might insist that the few verses from the Koran mandate her to keep her head covered.

Questions in balancing constitutional and religious values with Uniform policy

  • In the absence of a statutory uniform code, a court may well ask whether a head covering mandated by some religions, when worn in addition to the uniform, violates any legal tenet.
  • Would the same standards that banish a female hijab apply to a turban worn by a male Sikh student?
  • Can government colleges deny education to students who are seen to be violating a uniform code?
  • Is the hijab or even a full covering in any manner violative of the process of imparting education?
  • Can a government committed to female education deny education to those it deems improperly dressed?
  • Should implementation of a dress code be prioritised over imparting education to all that seek it?
  • These and other like questions will probably soon engage the attention of a constitutional court.

Competing rights

  • The interpretative answer to the hijab row, from the “holy book”, might lie in another case from Udupi district.
  • In 1957, the Supreme Court, in Sri Venkataramana Devaru vs State of Mysore, had to examine whether the exclusion of a person from entering into a temple for worship is a matter of religion according to Hindu ceremonial law.
  • The Court held “... that the right of a denomination to wholly exclude members of the public from worshipping in the temple, though comprised in Art. 26(b), must yield to the overriding right declared by Art. 25(2)(b) in favour of the public to enter into a temple for worship.
  • But where the right claimed is not one of general and total exclusion of the public from worship in the temple at all times but of exclusion from certain religious services, they being limited by the rules of the foundation to the members of the denomination, situation changes.
  • The question then is not whether Art. 25(2)(b) overrides that right so as to extinguish it, but whether it is possible-so to regulate the rights of the persons protected by Art. 25(2)(b) as to give effect to both the rights”.
  • Venkataramana Devaru points to the Court’s endeavour to harmonise competing rights in a way that both were given effect to.
  • In the hijab case, the courts will be called upon to protect an essential religious practice, in a manner consistent with imparting education in an orderly fashion.