Decoding the legal wrangle on hijab row, religious freedoms (2022)

hijab

Decoding the legal wrangle on hijab row, religious freedoms

The decision came on the day when the Karnataka high court commenced hearing a clutch of petitions against the state government’s February 5 order that effectively denied entry to hijab-clad (or saffron scarf-sporting) students in educational institutions. The high court urged the students and public at large to maintain peace and transequililty as it deferred the hearing to Wednesday.

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At the core of the dispute is the clash between the state-mandated restriction on religious attire in educational institutions on the ground of maintaining public order and uniformity, and the constitutional rights of individuals to freely exercise their religious beliefs and free speech and expression.

The contentious subject ensues a legal question whether the right to wear a hijab is constitutionally protected as an essential religious practice or not. The Karnataka government maintains that hijab is not an essential religious practice in Islam and that, even otherwise, the state is constitutionally empowered to issue prohibitory orders to impose reasonable restriction to the exercise of fundamental rights. Those protesting against the ban maintain that hijab is an integral part of Islam and the ban is an egregious invasion into their religious freedom.

In State of Madras Vs G Row (1952), the Supreme Court held that test of reasonableness, whenever prescribed, shall be applied to each individual statute impugned and that no abstract or general principle of reasonableness can be laid down for all prohibitory laws.

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The Supreme Court also clarified in Superintendent, Central Prison, Fatehgarh Vs Ram Manohar Lohia (1960), that public order must be distinguished from the other grounds mentioned under Article 19(2) and taken in an exclusive sense to mean public peace, safety and tranquillity as opposed to national upheavals, such as revolution, civil strife and war, affecting the security of the State.

Article 25 of the Constitution maintains that all people are equally entitled to freedom of conscience and the right to profess, practise and propagate religion, subject to public order, morality and health. Apart from the caveats mentioned above, the provision adds that the State shall still be entitled to regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practice.

Similarly, Article 26 entitles every religious denomination to manage its own affairs in matters of religion, but this right is also subject to public order, morality and health. Articles 27 to 30 also guarantee freedom to manage religious affairs, monetarily contribute to promotion of any religion, and to set up and administer educational institutions.

From its early decisions, the Supreme Court has protected the rights under Articles 25 and 26, underscoring how right to choose religion is a natural right of choice.

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In Ratilal Panachand Gandhi Vs The State of Bombay and others (1954), the Supreme Court held that every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for edification of others.

With man’s relations to his Maker and the obligations he may think they impose, and the manner in which an expression shall be made by him of his belief on those subjects, no interference can be permitted, provided always the laws of society, designed to secure its peace and prosperity, and the morals of its people, are not interfered with,” emphasised the top court in SP Mittal Vs Union of India, 1983.

In Punjabrao Vs DP Meshram (1965), the Supreme Court interpreted what professing a religion means. “A declaration of one’s belief must necessarily mean a declaration in such a way that it would be known to those whom it may interest,” held the court.

The legal position is thus clear that while the State must protect religious faith and belief, if religious practices run counter to public order, morality or health, then they must give way before the good of the people of the State as a whole (Masud Alam Vs Commissioner of Police,1956).

Freedom of religion and essentiality test

In Ratilal P Gandhi Vs State of Bombay (1954), the court noted that the State has the power to regulate secular activities associated with religious practice, but not the regulation of “religious practices” as such. The court noted that the activities, which the State seeks to regulate, must be of an “economic, commercial or political character though they are associated with religious practices”. At the same time, the top court acknowledged the State’s power to make laws providing for social reform and social welfare even though they might interfere with religious practices.

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