This is something I worked on during my internship with Alternative Law Forum.
Date: 15 July 2012
Hijab Issue
The recent controversy regarding donning a Hijab by Muslim students has spurted in Jain PU College, Moodbidri in Karnataka state of
India. The question at hand is whether such a blanket ban on wearing Hijab to college is violation of the
right of freedom of speech and expression, guaranteed under Article 19(1) of
the Constitution of India, or is it just a matter of maintaining uniformity and
following a dress-code in educational institutions like schools and colleges.
Hadiya, the student who was denied permission to
attend college because of her donning a Hijab,
has approached higher authorities. In a letter to Dakshina Kannada
Deputy Commissioner Channappa Gowda, she has sought official permission to do
so.
Hadiya said that she would go as far as to the Governor or even the President if she fails to get a positive response from the Deputy Commissioner.
Hadiya said that she would go as far as to the Governor or even the President if she fails to get a positive response from the Deputy Commissioner.
Karnataka State Human Rights Commission (SHRC) advised
Hadiya Iqbal to take her case of being allowed to attend classes wearing the
traditional Hijab before the
constitutional bench of Supreme Court.
Following the controversy, some students of Sri Ramakunjeshwara First
Grade College, Ramakunja, boycotted classes over the management’s dress code.
The college, run by Sri Ramakunjeshwara Educational Institutions,
does not permit students to dress according to their faith. Muslim students are
allowed to come to college in burqa or headscarf. But in the classroom, they
are expected to remove it. On Thursday (12 July 2012), girls who came in
headscarves to class were asked to remove it. Following this, students started
protesting and refused to attend classes. The protest has been going on for
three days; the strength of students protesting has crossed 100.
Reasons for the Ban
Jain PU College has refused to
allow the student, Hadiya, to attend classes wearing a Hijab. Their argument is simple and consistent from the start- they
are not encroaching upon any religion or the right to freedom of speech and
expresion; they just wish to promote uniformity between all students.
Article 19 (1)(a) provides freedom
of speech and expression to every individual who is a citizen of the State. So
long as this freedom is not being misused, the State is under the obligation of
protecting it.
Cases
at hand
In the case of Bijoe
Emmanuel & Ors vs State Of Kerala & Ors [1],
three children were expelled from school after they refused to sing the
National Anthem.
The
appellants-three children belong to a sect called Jehovah's Witnesses who
worship only Jehovah-the Creator and none other. They refused to sing the
National Anthem: 'Jana Gana Mana' because, according to them, it is against the
tenets of their religious faith-not the words or the thoughts of the National
Anthem-but the singing of it. They desisted from actual singing only because of
their aforesaid honest belief and conviction but they used to stand up in
respectful silence daily, during the morning assembly when the National Anthem
was sung. A Commission was appointed to enquire and report and it reported that
the children were "law abiding" and that they showed no disrespect to
the National Anthem. However, under the instructions of Deputy Inspector of
Schools, the Head Mistress expelled the appellants from school from July 26,
1985.
It was held that the
Fundamental Rights of the appellants under Art. 19(1)(a) and 25(1) have been
infringed and they are entitled to be protected. The expulsion of the three
children from the school for the reason that because of their conscientiously
held religious faith, they do not join the singing of the National Anthem in
the morning assembly though they do stand respectfully when the National Anthem
is sung, is a violation of the fundamental right to freedom of conscience and
freely to profess, practice and propagate religion.
Article 19(1)(a)
of the Constitution guarantees to all citizens freedom of speech and
expression, but Article 19(2) provides that nothing in Article 19(1)(a) shall
prevent a State from making any law, in so far as such law imposes reasonable
restrictions on the exercise of the said right. Art. 25(1) guarantees to all
persons freedom of conscience and the right freely to profess, practise and
propagate religion, subject to order, morality and health and to the other
provisions of Part III of the Constitution.
While on the one
hand, Art. 25(1) itself expressly subjects the right guaranteed by it to public
order, morality and health and to the other provisions of Part III, on the
other hand, the State is also given the liberty to make a law to regulate or
restrict any economic, financial, political or other secular activity which may
be associated with religious practice and to provide for social welfare and
reform, even if such regulation, restriction or provision affects the right
guaranteed by Art. 25(1). Therefore, whenever the Fundamental Right to freedom
of conscience and to profess, practise and propagate religion is invoked, the
act complained of as offending the Fundamental Right must be examined to
discover whether such act is to protect public order, morality and health,
whether it is to give effect to the other provisions of Part III of the
Constitution or whether it is authorised by a law made to regulate or restrict
any economic, financial political or secular activity which may be associated
with religious practise or to provide for social welfare and reform.
As we have seen
from the above discussion, wearing of a Hijab
to college can by no stretch of imagination be said to hinder ‘public order,
morality or health.’ Further, the Constitution has given only the State the
power to come up with regulations or restrictions regarding the provisions
guaranteed by Article 25(1). A private institution, like a college in the said
case, cannot come up with internal laws or dress codes that hamper the practice
of some religion. Any law which may be made under clauses 2 to 6 of Art. 19 to
regulate the exercise of the right to the freedoms guaranteed by Art. 19(1)(a)
to (e) and (g) must be 'a law' having statutory force and not a mere executive
or departmental instructions.
The ban on Hijab has no statutory basis and is merely
a departmental instruction. It cannot, therefore, form the foundation of any
action aimed at denying to citizens Fundamental Right under Art. 19(1)(a).
Further it is not possible to hold that the restriction on wearing a Hijab was issued 'in the interest of the
sovereignty and integrity of India, the security of the State, friendly
relation with foreign states, public order, decency or morality, or in relation
to contempt of court, defamation or incitement to an offence' and if not so
issued, it cannot again be invoked to deny a citizen's Fundamental Right under
Art. 19(1)(a).
We see that the
right to freedom of conscience and freely to profess, practise and propagate
religion guaranteed by Art. 25 is subject to (1) public order, morality and
health; (2) other provisions of Part III of the Constitution; (3) any law (a)
regulating or restricting any economic, financial, political or other secular
activity which may be associated with religious practice; or (b) providing for
social welfare and reform or the throwing open of Hindu religious institutions
of a public character to all classes and sections of Hindus. Thus while on the
one hand, Art. 25(1) itself expressly subjects the right guaranteed by it to
public order, morality and health and to the other provisions of Part III, on
the other hand, the State is also given the liberty to make a law to regulate
or restrict any economic, financial, political or other secular activity which
may be associated with religious practise and to provide for social welfare and
reform, even if such regulation, restriction or provision affects the right
guaranteed by Art. 25(1).
The question is
not whether a particular religious belief or practice appeals to our reason or
sentiment but whether the belief is genuinely and conscientiously held as part
of the profession or practice of religion. Our personal views and reactions are
irrelevant. If the belief is genuinely and conscientiously held it attracts the
protection of Art. 25 but subject, of course, to the inhibitions contained
therein.
In the Bijoe Case,
it was held that the Fundamental Rights of the appellants under Art. 19(1)(a)
and 25(1) had been infringed and they were entitled to be protected. Appeal in the
Supreme Court was allowed and the judgment of the High Court was set aside. The
school was directed to re-admit the children to the school, to permit them to
pursue their studies without hindrance and to facilitate the pursuit of their
studies by giving them the necessary facilities.
The ratio of this
case highlighted a very important point with respect to India being a secular
state and what it actually stands for. The judges, while delivering the
judgment, added: our tradition teaches tolerance; our philosophy preaches
tolerance; our constitution practices tolerance; let us not dilute it.
AIR Manuals
Article 19 protects some of the important attributes of
personal liberty as independent rights and the expression as independent rights
and the expression ‘personal liberty’ means in Article 21 all the varieties of
rights which make up the personal liberties of men[2].
The purpose of the
guarantee under Article 19 (1)(a) is to prevent public authorities from
assuming guardianship of the mind[3].
Right to freedom
of speech and expression carries with it the right to propagate and circulate
one’s view an opinions subject to certain restrictions.[4]
Insulting religion
or religious beliefs of any class of citizens (Section 295A, IPC), is a
reasonable provision in interest of public order, as tendency of such insult
will clearly be to create public disorder, and hence this section is valid.
Pagdi V Hijab:
Curbing Religious Freedom
St Edward’s School, Simla, had
recently been involved in a controversy after they stopped a Sikh boy from
wearing a pagdi to school[5]. In April 2012, after over
one-and-a-half months, the old
controversy regarding wearing full-sized turbans finally came to an end with
the Principal taking back the order and allowed students to wear headgear. He
assured students that they could wear full turban without any problems in a
written letter. The school had issued an order in March 2012, refraining any of
the Sikh students from wearing a full turban tom college. They were allowed
only to wear patkas, and had been doing so since then. Shimla
Deputy Commissioner Onkar Sharma had directed school Principal John Bosco to
settle the issue on priority.
Parallels can be
drawn between the two cases. In both these situations, two common points arise-
hindrance of Right to Education preceded by curb on the right of freedom of
expression. Since the Shimla controversy took more than a month to settle down,
with time, it can be expected that the Kannada School will also lift the
unreasonable ban on wearing Hijab.
[1] Bijoe Emmanuel & Ors vs State
Of Kerala & Ors on 11 August, 1986 (Supreme Court of India) http://www.indiankanoon.org/doc/1508089/
[2]
AIR 1950 SC 27 (111) : 51 CriLJ 1383
[3]
AIR 1958 SC 578 (616)
[4] AIR 1957 SC 896 (899)
