Hijab Ban & Indian Concept Of Positive Secularism

Right to religion with respect to the practices has been in question time and again, this time the controversy spiked on banning students from entering college in Karnataka, the matter is now sub-judice. A few years back, Sabrimala^[1] issue was in a similar light concerning religious practices and the right to equality. The current issue does not only deal with the right to freedom of religion but it opens up to the maintenance of religious standards in institutions and further on to the aspect of secularism practiced.

Freedom of Religion

The question of burkhas or hijab is not in controversy for the first time, in 2015 during the widespread cheating cases leading to the cancellation of the All India Pre-Medical Entrance Test, CBSE notified wearing of light dress, with other dressing guidelines. This was challenged by one Nadha Raheem^[2], Justice K.V. Chandran presiding the matter held that a blanket order prescribing the dress code cannot be allowed in the light of the diversity of religions and cultures present in India.

The freedom of religion is a fundamental right that provides an indiscriminative right to practice, profess, and propagate their respective religion freely enshrined in Articles 25-28. Although the right is not absolute, there are certain restrictions subject to public order, morality, health, and provisions of Part III of the Constitution, unlike the unrestricted rights provided in the American and Australian Constitutions (Shirur Mutt Case^[3], 1954). Further exceptions to Article 25 are provided in Clause 2 (b), which states two exceptions; first, laws providing for social welfare and social reform, and second, the opening of all Hindu religious institutions of a public character to all classes and sections of Hindus. This Clause has protected the reforms like the prohibition of sati, devdasi, bigamous marriage, etc. Though in Syenda Taher^[4] held that Clause 2 (b) was not intended to cover the ambit of religion which constitutes essentials.

Article 28 provides for freedom to attend religious instructions or worship in certain educational institutes. This provision creates a distinction between educational institutes as completely maintained by the State, established under some trust but administered by the State, and those only recognized or aided by the State. In the first category, there is a complete prohibition of giving religious instructions, but in the later categories, it is allowed but without any compulsion.

Dr. Ambedkar explained the reasoning of such prohibition in the Constitution Assembly Debates in three folds: public funds shall not be utilized for benefits for a particular community as interpreted through Article 21, the multiplicity of religion and faiths would make the task Herculean, and last, an observation that the religions in India are not just non-social but anti-social.^[5] Thus, the intention was to keep the educational institutes free from aligning to any particular religion or faith and to be neutral and inclusive of the religions of the individuals, this makes any rule or regulation which breaks this interpretation of irreligion violative of the Constitution.  

Essential Religious Practice

Article 25 does not only works on the religion but also on the religious practices, the Apex Court in Ratilal Panachand Gandhi^[6] has observed that religious practices in pursuance of the religion are congruent to the faith in the tenets of that religion. Although such religious practice in question must be proved to have been practiced and followed since time immemorial, so as it forms a basic tenet of the faith of the individual (Seshammal Case^[7], 1972). Ergo, it is of great importance that such practice should form an integral and essential part of the religion.

In 2016^[8], the same question was explained in detail by the Kerala High Court and held, while going in details of Quran and Hadiths with regard to the clothing necessities of the women, that wearing hijab or head scarf is an essential practice of Islam. Several verses from Quran and Hadiths were referred to conclude that it is farz to cover the head and covering body except for part of the face, and the non-abiding of this would constitute haram. Although the Court did not prescribe CBSE to change rules from the same year but directed to allow all the candidates and do necessary changes from next year to accommodate candidates subscribing to different faiths.

While in 2018^[9], the same Court gave a very different view by keeping itself away from directing the private institution to permit Muslim girls to wear head scarf/ hijab. The view taken was that in a feud between individual rights and community rights, the latter must prevail.

Issue of Secularism

Secularism, as practiced in India, is different from the western concept of secularism. While in the western countries secularism developed as a concept proceeding separation of the Church and the State, to give liberty to the individual to practice the religion of their choice, in India this concept is much older than the realization of the common individual. Secularism in India is multi-faceted and is an appreciation of multiple ethnicities.

It is pertinent to describe the nature of secularism practiced, it is not as stringent as that of France, where the open display of any signs related to any religious identity is expressly prohibited, but in India, there is a more inclusive understanding of secularism. This version of secularism is derived from the old Indian philosophical concept of "sarva-dharma-sambhava". Thus, neither it is anti-religion, nor does it separate the State and religion thoroughly. Contrary to the West, the Indian Constitution embodies positive secularism, i.e. protecting all religions equally and giving equal respect to all the religions.

This provides religious liberty to the individuals against the arbitrary actions of the State to interfere with their fundamental right to freedom of religion. The intra-religious interference is not prohibited completely but is minimal and subjected to the exceptions stated in Articles 25-28. The interference is justified if it works on a bigger scale to reform the religious dogmatic practices. In one incident of the prohibition of cow slaughter was challenged as being violative of the freedom of Islam, where the Apex Court held that the practice is not an essential part of the religion and thus can be regulated under Article 25(2) (a)^[10].

Therefore, secularism in India is a very indigenous concept and is meant for giving liberty to the individual for practicing, professing, and propagating her religion. The basic features of secularism involve equality rights and welfare of people, regardless of their affiliation to any religion.

In the case of Kesvananda Bharti^[11], the Apex Court has held secularism as a basic feature of the Constitution. Hence, it imposes a liability on the State to be neutral and not affiliate to any religious identity. In 1992, following the illegal demolition of the disputed structure at Ayodhya, four State governments of BJP were dismissed, and this was upheld by the Court, as they acted against the basic feature of the Constitution i.e. secularism.^[12] It becomes of great importance that not only the State practices religious neutrality, but also that it allows the individual to profess and practice their religion according to their will, subject to the Constitutionally permitted restrictions.    

Further, the Constitution provides continuing protection to the community to allow it to thrive and excel in the sphere of society and this protection helps the holistic development and shielding of the communities from the majoritarian forces. This principle of secularism is followed throughout the provisions of the Constitution, and is not just limited to the freedom of religion.

Individual and Religion

In the case of Bijoe Emmanuel where students belonging to the religion, Jehovah's Witnesses, were expelled from the school for not singing the National anthem, the Hon'ble Supreme Court held that

"…the question is not whether a particular religious belief or practice appeals to our reason or sentiment… Our personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of Article 25 but subject, of course, to the inhibitions contained therein."^[13]  

It cannot be a view of the outsider to judge the religious practices of the particular individual, it is the personal right of the individual to put faith in the practices. The radical feminist views argue that purdah system, hijab, burqa, veil, etc. are regressive practices and are a feature of patriarchy, and rightly so, but in context to the rights available to the individual, it is also pressed that this should be the choice of the individual to practice their religion as they deem fit. There can be and should be no interference in the fundamental rights of the individual.

In the dissenting judgement in Sabrimala Case^[14], Justice Indu Malhotra held that irrespective of whether the religious practice is rational or logical, there must be harmonization of the fundamental rights which include the freedom of religion following the tenets of their religion. The concept of rationality cannot be invoked by the Court in the cases of religious practices; what is faith to one is stupidity to other, what is god to one, is a hypothesis to other. These are very individualist rights, and faith, a private affair.

The present case is not just of religious freedom but also the individual's right to education, and to her life and liberty. It is the duty of the State to ensure that an individual can profess and practice her religion without hampering her other rights. Anything contrary to that damages the concept of secularism. A blanket ban on head scarf and hijab due to some prescribed dress forms in school is arbitrary.

Such a whimsical ban must be avoided, a more constructive approach is required in the present case. A biased triumph of community rights over individual rights promotes the sense of majoritarianism, which is conflicting with the principles of utilitarianism.

(The author is a Delhi-based advocate. He may be reached at @psrana1997@gmail.com. Views are personal)