by Aabid Mushtaq and Tajamul Islam
The official order, which restricts the wearing of hijab within colleges in no way justifies that the conduct of hijab has tendencies to affect public order, morality and health.
In an unprecedented move in Karnataka, a college restricted Muslim students from entering college premises or attending classes who are found to wear hijab. It now spilt over to other colleges as well. The order is just not only against the essential part of Islamic religion but also does violates the constitutionally guaranteed rights of women and is a direct assault on the very foundational principle of secularism.
An executive order can’t blatantly ban anything, which is having a standard position in one of the basic structures of the Indian constitution and even if the same stands passed is apparently arbitrary and illegal in nature.
The contention of the Karnataka girls who were denied entry into college is what explains the real secularity and identity of what actual India stands for. It also draws a line on how secular nature and the idea of India is getting diluting and faded as their contention and claim proposed as that the people from other religions such as Hinduism are allowed to wear Bindis and bangles, Sikhs are allowed to wear turbans. Therefore, not allowing the hijab selectively targets Muslims.
No Religious Definition
The Constitution did not define religion. Therefore, it has to be understood in a normative sense. Religion could be defined as a set of practices to regulate oneself in his internal and external conducts in obedience to his beliefs. Thus, religious practices are a set of rules or principles for the attainment of belief in supreme power. Religious practices are what religion teaches. The religions like Buddhism and Jainism do not believe in the existence of God but follow the beliefs and doctrines for spiritual wellbeing.
In the case of Ratilal Panachand Gandhi and others Vs. State of Bombay & Ors AIR 1954 SC 388, the Constitution guarantees protection to religious practices based on what one’s conscience professes. Therefore, in all circumstances, he can retain his identity based on religion. The State cannot interfere with the practice of religious affairs, which would obliterate his religious identity. The environment in which one has to live is determined by the patterns of the idea formed by his conscience subject to the restrictions as referred to under Article 25(1).
Supreme Court Rulings
The Supreme Court has also dealt with the case, where students have been expelled from schools for following their religious practices. In 1985, three students belonging to the Christian sect of Jehovah’s Witnesses were expelled from the school after they refused to sing the national anthem. They argued that this went against their religious faith. The students contended that their faith did not permit them to follow any rituals except praying to God. However, they stood up to show their respect for the national anthem.
The Supreme Court held that the expulsion violated the student’s freedom of expression and their right to practice religion. The court noted that even though the beliefs of Jehovah’s Witnesses may appear unusual, “the sincerity of their beliefs is beyond question”.
A plethora of judgments have clearly allowed the wearing of hijab and have put it into the fundamental right under Article 25 of the Indian constitution. Article 25(1), while allowing the freedom of conscience and the right to profess, practice and propagate religion, reserves the State’s right to interfere with religious matters, if it involves an issue relating to public order, morality and health.
A Personal Choice
The official order, which restricts the wearing of hijab within colleges in no way justifies that the conduct of hijab has tendencies to affect public order, morality and health. Thus to intermeddle with the religious affairs other than the exceptions provided in the constitution is brazenly unreasonable, arbitrary, illegal, unconstitutional and shows some different motives towards the targeted citizens of the country. It is a personal choice to wear or not to wear a hijab and no order can enforce the removal of hijab.
The wearing of the Hijab forms the essential part of religion, drawing its reference directly from the sources of Islamic Law (Shariah). The essential part of religion means the core beliefs upon which a religion is founded. Therefore, the fundamental right of freedom to practice religion is protected to the extent to practice an essential part of the religion, subject to the restrictions enumerated under Articles 25(1) and 26.
There is no fundamental right conferred on any person about the practice of a non-essential part of religion hence in those circumstances the State is competent to curb or regulate or interfere with the non-essential part of the religious practices on any reasonable ground. Moreover, the State is competent to make laws consistent with the essential part of religious practice.
The recent order can’t even pass the prima facie stage before the court and would be declared violative in view of the various judgments. The order falls not only violates the essential part of the constitutionally guaranteed right, it also is against secularism, which instead of attempting to obliterate religion from public spaces while attempting to respect all faiths equally.
A Core Belief
Islam embraces and encompasses guidance to humans in all walks of life. Shariah is Islamic law. Shariah consists of two things: the laws revealed through the Holy Quran and the laws that are taken from the lifestyle and teachings of the prophet Mohammed (pbuh). This part is called Hadiths.
The command of hijab is expressly mentioned in Chapter 24 known as ‘The Light” (Nur) in verse 31 in Holy Quran, the command is as follows:
“31. And tell the believing women to lower their gaze and be modest, and to display of their adornment only that which is apparent, and to draw their veils over their bosoms, and not to reveal their adornment save to their own husbands or fathers or husbands’ fathers, or their sons or their husbands’ sons, or their brothers or their brothers’ sons or sisters’ sons, or their women, or their slaves, or male attendants who lack vigour, or children who know nought of women’s nakedness. And let them not stamp their feet so as to reveal what they hide of their adornment. And turn unto Allah together, O believers, so that ye may succeed.”
Further, in Chapter 33 known as ‘The Clans” (AL-Ahzab) in verse 59 of the Holy Quran, the command is as follows:
“O Prophet, tell your wives and your daughters and the women of the believers to lower over them a portion of their jilbabs. That is more suitable that they will be known and not be harmed. And even Allah Forgiving and Merciful.”
The reference of jilbab in the above chapter would indicate that the Islamic dress code for women not only consists of a scarf that covers the head, the neck and the bosom but also includes the overall dress that should be long and loose. The jilbab in Arabic dictionary like lisanu–al-Arab, the loose outer garment.
In one of the Hadiths (words of the Prophet), explaining the Quranic verses to his sister-in-law Asma is as follows:
“O Asma! It is not correct for a woman to show her parts other than her hands and face to strangers after she begins to have menstruation.”
Reported by Abudawud ref: hadith No 4092 kitab al libas, (book of clothing) Sunan Abu Dawud.
Thus, in view of and analysing of the Quranic injunctions and the above said Hadith, it is clearly outlined and apparent that it is a Farz to cover the head and wear the long-sleeved dress except for face part and exposing the body otherwise is forbidden (haram) and same practice doesn’t fall within the restrictions put forth by the Article 26 of Indian Constitution.
Whatever is Farz in Islam it undeniably forms the essential part of religion and therefore prevents the state from any kind of interference and in doing so leads to the denial of the fundamental rights and would have great ramifications in near future.
The discussions as above would show that covering the head and wearing a long sleeve dress by women have been treated as an essential part of the Islamic religion. It follows a fortiori; Article 25(1) protects such prescription of the dress code.
Then the only question that remains is the essential practice as above would offend the public order, morality, and health or is it necessary to regulate such essential practice to give effect to other provisions of Part III of the Constitution.
The rationale for prescribing dress code by the Colleges and now the BJP Government officially came with the order amid spiralling protests by students is to ensure equality, integrity and public law and order. The exceptions to Article 25 nowhere mention that the state can interfere on the basis of equality and integrity and this is clearly bizarre. On the point of public law and order, it has to clarify how the wearing of hijab would affect the community or public at large.
The row against the Muslim minority is a sign of the ongoing and upcoming establishment of an extremism state, which would damage the sanctity and diversity of its existence and also pushes India to fall in line with France.
However, recent episodes in India have made clear the Indian state’s disregard for secular ideals and unity. DD Basu in his commentary on the Constitution of India says, “No sane person would question the proposition that the objects of religion and politics are different and that they shouldn’t be mixed up. Obviously, the cause of both will be ruined if one is used for achieving the purposes of the other.”
(Authors are students of the School of Law at the University of Kashmir, Srinagar. The opinions expressed in this article are those of the author’s and do not purport to reflect the opinions or views of Kashmir Life.)