Friday, August 10, 2012

Hijab- The What and Why, and Why Not

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.
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)

Sunday, July 24, 2011

Slut Walk arthaat Besharmi Morcha


SlutWalk Delhi arthaat Besharmi Morcha.
Sunday, 31 July.
10.30am to 12.30pm.
Jantar Mantar Road.


See you.

Thursday, June 10, 2010

Second Time Lucky!

It's super edited, so i'll say all the credit goes to my sr. reporter. I finally feel like I'm being guided, and its a wonderful wondeful feeling. :)
http://epaper.mailtoday.in/Details.aspx?boxid=102636343&id=37700&issuedate=1062010

Have fun :)

Monday, June 7, 2010

First By-Line

Yes I got my first by-line in today's Mail Today, pg 14!!
Its a great feeling to see my name there :D.



The image isn't all that clear, so posting a link (or you can just click on the pic).(http://epaper.mailtoday.in/Details.aspx?boxid=24942390&id=37557&issuedate=762010)


"By Mishika Singh in New Delhi".. Fancy, ain't it??

Also, Happy Birthday to my chuddy buddy (amongst other things), so double celebration!!


On a High,
Mish-ika ;)

Tuesday, June 1, 2010

DELHI UNIVERSITY FOR DELHI-ITES?

For Mail Today:
-----------------

June 1, 2010: Lok Abhiyan, an initiative taken to bridge the gap between the government and the people, organized a seminar Face to Face for students aspiring to take admission in Delhi University (DU) on Tuesday evening. Presided over by BJP leader and President of LoK Abhiyan, Vijay Goel, the seminar included eminent panelists from the University to address problems faced by students and teachers in DU.

“This seminar will give a chance to all freshers to have one-to-one with the highest authorities in DU”, said Nupur Sharma, President of Delhi University Students Union. Goel raised some important questions on behalf of the students which included problems with accommodation of out-station students in University colleges, preference to Delhi Students, online submission of OMR forms, and the success of Information Centres all over Delhi.

Goel questioned, “If Maharashtra can give preference to domicile, why not Delhi University?” He emphasized on the fact that 70% of the seats in DU are taken by outside students, therefore creating problems for students here. Also, the accommodation provided to out-station students is not upto the mark and students struggle to rent flats in Mukherji Nagar, Kingsway Camp, etc.

However, Vice Chancellor Deepak Pental clarified that in the general category only 10-15% students are from outside Delhi. He further defended his stand by explaining that SC/ST reservation is a constitutional obligation and the University can’t turn its back on them. “The seats of these (SC/ST) categories will be filled only by tribes from outside. Such a condition is inevitable.”

To counter the problem of accommodation of out-station students, Pental informed that two hostels with an accommodation of thousand each are under construction in Dhaka Village, 1.5km from the University campus. Two more hostels are being planned in the same area.

The question however remains if Delhi University is indeed for Delhi-ites and, therefore, should give some relaxation to residents of Delhi for admissions, or should it continue to be a centralized academic institution knows for its educational standards and not because it is situated In Delhi.

Mishika Singh

Saturday, March 13, 2010

Tree Protest By KNC Students

23.02.2010

Description:
It started on the morning of 23rd February 2010, with a group of students skipping classes to stop the felling of some trees opposite Kamala Nehru College.
By afternoon, it became an 'issue' for the Government as we were 'disrupting' their work.

The CPWD has been asked to UPROOT eleven trees on SIRI FORT ROAD for the widening of roads. Even though they have got permission from the Forest Department to do so, there is NO PERMISSION from the UTTIPEC for widening of roads. In spite of the Supreme Court order which requires a mandatory permit from UTTIPEC, the CPWD is going ahead with the cutting of trees ILLEGALLY.

Also, if the roads are widened, there won't be any footpath for pedestrians to walk on. Is two weeks of Commonwealth Games reason enough for the government to cut these tress and put the lives of thousands of college students at risk??

24.02.2010
The first protest took place on 24February. It started around 10am and went on till 1pm. We were able to postpone the felling if trees, but no on k new till exactly how long.


06.03.2010

The PWD resumed their work on the night of 5th March around 10pm. We were able to stop the felling of trees that time too but immediate action needed to be taken to put an end to this. Another protest was organised on March6th against the PWD. Participation of people had died out majorly, as only the very few who actually felt for the cause were present. Nevertheless, we continued with out POA.




13.03.2010
The fight is still going on with no outcome as such. The deadline of the feeling of trees has been extended from March end to July end, ensuring that the work is done as soon as we start with our summer breaks.

All the time people talk about raising their voices against the wrongs that are being done. But it's strange that when you actually do that, not many join you. Moreover, you are suppressed even before you start. "Tum system ko nahi, system tumhe badalta hai" has a whole new meaning for me after going through all this for more than 2weeks now.

Two weeks of Commonwealth Games does not mean we sacrifice our environment and risk thousands of young lives.



Disappointed,
Mish-ika