ABSTRACT
As clearly envisioned in the Preamble to the Constitution of India, the character of India as a secular state manifests an ideology and commitment to upholding the principle of secularism while ensuring religious freedom for all its citizens. The Indian concept of secularism has evolved over time which promotes the idea of “Unity in Diversity in the spirit of the rich and varied religious and cultural environment of the country. Nevertheless, confusions surrounding India’s secular structure is arising and intensifying amid new challenges in the 21st century. The contentious Hijab Ban issue and the decisions delivered by the Karnataka High Court and the Supreme Court of India in Resham and Anr. v. State of Karnataka[1] and Aishat Shifa v. State of Karnataka and Ors.[2] respectively, highlight the tension between individual religious freedom and the state’s power to impose restrictions. A similar issue in Mumbai, addressed by the High Court of Bombay and the Supreme Court’s intervention in the special leave petition, has further raised this debate.[3]This paper examines the hijab ban issue with constitutional provisions, judicial pronouncements, and socio-political discussion relating to its impact on secularism in India. The topic assumes great importance because the Hijab controversy affirms the need for promoting religious freedom among individuals while maintaining national interest in promoting religious amity in society. Solving these will be pivotal in determining the future of secularism in India, yet it would require balanced approach which respect both legal obligations as well as social obligations.
KEYWORDS: Secularism, Hijab Ban,Religious Freedom, Restrictions, Essential Religious Practices.
INTRODUCTION
All constitutions in the world have a philosophy of their own.[4] The fundamental philosophy of the Indian Constitution is well enshrined in the Preamble to the Constitution. The secular vision of the Constitution was formally inserted into the Preamble by the Constitution (42nd Amendment) Act, 1976.[5] The Indian concept of secularism doesn’t imply complete disengagement from religious affairs, rather, it means that the state protects each religion equally and no particular religion enjoys patronage from the state. In the case of S.R Bommai v. Union of India,[6] the Hon’ble Supreme Court of India identified the concept of secularism as the basic feature of the constitution.
The Preamble also states that every citizen has the liberty of belief, faith and to worship, which in other words, mentions the concept of religious freedom in India.[7]Article 1 of the Universal Declaration of Human Rights adopted by the United Nations stress on the spirit of brotherhood.[8] The concept of securing fraternity as mentioned in the preamble also reflects the concept of brotherhood and guarantees religious harmony, which is very much needed in a plural society like India. The people of India have also a fundamental duty as provided in Article 51A(e) to promote harmony and the spirit of brotherhood transcending all religious diversities.[9]Very importantly, Articles 25 to 28 of Part III of the Indian Constitution explicitly provide for the fundamental right to freedom of religion, allowing individuals to worship according to the dictates of their conscience. However, this freedom is not absolute and is subject to state restrictions.[10] The balance between this religious freedom and state intervention often leads to tension, as seen in issues like the ongoing debates around the hijab.
THE HIJAB BAN: JUDICIAL DECISIONS AND AFTERMATH
In the case of Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra & Ors[11], the Honourable Supreme Court of India observed that a secular state, meant about rising above all differences of religion and which attempts to secure the good of all its citizens irrespective of their religious beliefs and practices.The controversial hijab ban issue, which began in December 2021 when a group of hijab-wearing Muslim girls were denied entry into the classrooms of PU College in Udupi, Karnataka, poses a serious threat to the concept of secularism in India. The issue intensified as protests took the shape of Hindu students wearing saffron shawls, ultimately escalating to a condition of dividing young minds along religious lines, which is an unwelcoming attitude considering the nature of Indian secular democracy. Some students had filed a writ petition before the Karnataka High Court through the case of Resham and Ors. v. State of Karnataka and Ors[12] challenging the GO dated 05.02.2022 which gave a directive that the uniform or dress code prescribed by the College Development Committees shall be mandatorily followed by the students and it banned clothing that disturbs equality, unity, and public order. The Petitioners made their stand clear as the Government Order being unconstitutional under articles 14, 15, 19, 21 and 25 of the Constitution of India, that it is an essential religious practice.[13]
The decision of the Karnataka High Court on March 15, 2022, as the ban on hijab was a constitutionally permissible restriction only, was not satisfactory for many, and hence they preferred the case before the higher judiciary through the case of Aishat Shifa v. State of Karnataka and Ors.[14] But the matter is yet to be resolved as on October 13, 2022, a two-judge bench of the Supreme Court delivered a split verdict in which Justice Hemant Gupta in chorus with the Karnataka High Court’s decision, upheld the ban, whereas Justice Sudhanshu Dhulia dissented, stating that wearing the hijab is a matter of choice and overturning the High Court’s judgment. In view of the different opinions expressed by the Bench, the matter is placed before Hon’ble the Chief Justice of India for constitution of an appropriate Bench.
The terrible ban on hijab actually affected Muslim girls considering their education, social and psychological consequences. A study conducted by the People’s Union for Civil Liberties, Karnataka unit, released the report titled ‘Closing the Gates to Education: Violations of Rights of Muslim Women Students in Karnataka,[15] which states that Muslim women students were not only prevented from accessing their right to education but also bore the brunt of a climate of hate, hostility, and misinformation. The PUCL study explains that the response of the state government in the Karnataka Legislative Assembly revealed that a total of 1,010 hijab-wearing girls dropped out of PU colleges because of the hijab ban and other reasons as well. From this, it is clear and certain that the government has failed to fulfil its obligation to uphold the directive provided in Article 41 of the Constitution.[16]
Not only in Karnataka, but a situation like this occurred in Mumbai as well. The hijab ban issue in Mumbai emerged when nine students from the Chembur Trombay Education Society’s NG Acharya & DK Marathe College challenged a new dress code imposed by the college, which banned the wearing of hijabs, burqas, and niqabs on campus. The Bombay High Court upheld the college’s directive, stating it aimed to prevent the disclosure of students’ religious identities, thus focusing on education. Aggrieved by this, the students filed a special leave petition[17] before the Supreme Court, arguing that the restrictions violated their fundamental rights. The Supreme Court, in a bench comprising Justices Sanjiv Khanna and Sanjay Kumar partly stayed the circular, specifically the clause prohibiting hijabs, caps, and badges. The Court criticized the rationale behind the college’s decision, emphasizing that such rules hindered women’s empowerment and violated constitutional rights, particularly Article 15, which ensures equality and non-discrimination. [18]It is a hard reality that interferences of this kind endanger the secular framework of the country and ultimately disrupt religious tolerance and harmony.
[1]Resham and Another v. State of Karnataka and Others, 2022 LiveLaw (Kar)42
[2]Aishat Shifa v. State of Karnataka and Others, (2022) SCC OnLine SC 1394
[3]Zainab Abdul Quayyum Chaudhary and Ors. v. Chembur Trombay Education Societies and Ors 2024 SCC OnLine SC 1940
[4]DURGA DAS BASU, INTRODUCTION TO THE CONSTITUTION OF INDIA, 20, (Lexis Nexis, 2018)
[5]Id. at 28
[6]S.R Bommai v. Union of India (1994) 3 SCC 1
[7] Dr. J. N PANDEY, CONSTITUTIONAL LAW OF INDIA, 27, (Central Law Agency, Allahabad, 2016)
[8] DURGA DAS BASU, supra note 4 at 28
[9]INDIA CONST. art 51 A (e)
[10]PANDEY, supra note 7
[11] Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra & Ors (1976) 2 SCC 17
[12] Resham and Another v. State of Karnataka and Others, 2022 LiveLaw (Kar) 42
[13] Kruthika Dudharejiya, Women’s Voice Intervention in Resham and Another v. State of Karnataka and Others, CENTRE FOR LAW AND POLICY RESEARCH (Nov 22, 2024, 11:00 A.M) https://clpr.org.in/litigation/10963/
[14]Aishat Shifa v. State of Karnataka and Others, (2022) SCC OnLine SC 1394
[15]PEOPLES UNION OF CIVIL LIBERTIES- KARNATAKA UNIT,Closing the Gates to Education: Violations of Rights of Muslim Women Students in Karnataka,2023, http://www.puclkarnataka.org/
[16]Express News Service, over 1000 Muslim Girls Dropped Out of PU Colleges in Karnataka during Hijab Controversy: PUCL Report, THE INDIAN EXPRESS (Jan 10, 2023, 02:15 IST) https://indianexpress.com/article/cities/bangalore/pucl-releases-report-on-impact-of-hijab-ban-on-muslim-girl-students-in-karnataka-8371485/
[17] Zainab Abdul Quayyum Chaudhary and Ors. v. Chembur Trombay Education Societies and Ors 2024 SCC OnLine SC 1940
[18] Apoorva, Supreme Court Partly Stays Hijab Ban by Mumbai Colleges: Issues Notice to College, SCC ONLINE TIMES (Nov22, 2024, 10:30 AM) https://www.scconline.com/blog/post/2024/08/12/supreme-court-partly-stays-hijab-ban-mumbai-college-issues-notice-to-college/