through Aabid Mushtaq and Tajamul Islam
The official decree, which limits the wearing of hijab within the colleges in no way justifies that the conduct of hijab tends to undermine public order, good morals and health.
In an unprecedented move in Karnataka, a college banned Muslim students from entering college premises or attending classes who wear hijab. It has now spread to other colleges as well. The order is not only against the essential part of the Islamic religion but also violates the constitutionally guaranteed women’s rights and is a direct attack on the very fundamental principle of secularism.
An executive decree cannot blatantly prohibit anything, which has a standard position in any of the basic structures of the Indian constitution and even if the same positions taken are apparently arbitrary and illegal in nature.
The affirmation of Karnataka girls who have been denied entry to university is what explains the true secularism and identity of what India stands for today. It also draws a line on how the secular nature and idea of India becomes diluted and blurred as their proposed affirmation and claim that people of other religions such as Hinduism are allowed to wear Bindis and bracelets, Sikhs are allowed to wear turbans. Therefore, do not allow the hijab selectively targets Muslims.
No religious definition
The Constitution does not define religion. It must therefore be understood in a normative sense. Religion could be defined as a set of practices allowing to regulate oneself in one’s internal and external conduct in obedience to one’s beliefs. Thus, religious practices are a set of rules or principles for the realization of belief in supreme power. Religious practices are what religion teaches. Religions like Buddhism and Jainism do not believe in the existence of God but follow the beliefs and doctrines of spiritual well-being.
In the case of Ratilal Panachand Gandhi and others Vs. State of Bombay & Ors AIR 1954 SC 388, the Constitution guarantees the protection of religious practices based on what the conscience professes. Therefore, in all circumstances, he can retain his religion-based identity. The state cannot interfere in the practice of religious affairs, which would obliterate its religious identity. The environment in which one has to live is determined by the patterns of the idea formed by his consciousness subject to the restrictions referred to in Article 25, paragraph 1.
Supreme Court decisions
The Supreme Court also looked into the case, where students were expelled from schools for following their religious practices. In 1985, three students belonging to the Christian sect of Jehovah’s Witnesses were expelled from school after refusing to sing the national anthem. They argued that it went against their religious faith. The students maintained that their faith did not allow them to follow any ritual except pray to God. However, they stood up to show their respect for the national anthem.
the Supreme Court ruled that the expulsion violated the student’s freedom of expression and right to practice his religion. The court noted that although the beliefs of Jehovah’s Witnesses may seem unusual, “the sincerity of their convictions is beyond doubt”.
A plethora of judgments have clearly allowed the wearing of hijab and put it in the fundamental right under article 25 of the Indian constitution. Article 25(1), while allowing freedom of conscience and the right to profess, practice and propagate a religion, reserves for the State the right to interfere in religious affairs, if it involves a question relating to public order, good morals and health.
A personal choice
The official decree, which limits the wearing of hijab within the colleges in no way justifies that the conduct of hijab tends to undermine public order, good morals and health. Thus, interfering in religious affairs other than the exceptions provided in the constitution is brazenly unreasonable, arbitrary, illegal, unconstitutional and shows different motives towards the targeted citizens of the country. It is a personal choice whether or not to wear a hijab and no order can impose the withdrawal of hijab.
The wearing of hijab forms the bulk of the religion, drawing its reference directly from the sources of Islamic law (sharia). The essential part of religion means the fundamental beliefs on which a religion is based. Therefore, the fundamental right to freedom to practice one’s religion is protected insofar as it permits the practice of an essential part of one’s religion, subject to the restrictions listed under Section 25(1) and 26.
No fundamental right is conferred on anyone to practice a non-essential part of religion. Therefore, in these circumstances, the state has jurisdiction to limit or regulate or interfere with the non-essential part of religious practices for any reasonable cause. In addition, the state is competent to make laws that conform to the essentials of religious practice.
The recent order cannot even pass the prima facie stage in court and would be declared non-compliant in view of the various judgments. The fall of the order not only violates the essential of the right guaranteed by the Constitution, but also against secularism, which instead of trying to erase religion from public spaces while trying to respect all faiths equally .
A fundamental belief
Islam embraces and encompasses guidance to humans in all walks of life. sharia is Islamic law. sharia consists of two things: the laws revealed by the Holy Quran and the laws that are drawn from the lifestyle and teachings of the Prophet Muhammad (as). This part is called Hadiths.
The order of hijab is expressly mentioned in Chapter 24 known as “The Light” (Nur) in verse 31 of the Holy Quranthe command is as follows:
“31. And tell the believing women to lower their eyes and be modest, and display of their adornment only that which is apparent, and draw their veils over their bosoms, and reveal their adornment only 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 wives, or their servants, or servants who lack vigor, or children who know nothing of women’s nudity. And that they don’t stamp their feet to reveal what they hide in their finery. And convert yourselves together to Allah, O believers, that you may succeed.”
Further, in Chapter 33 known as “The Clans” (AL-Ahzab) in verse 59 of the Holy Quranthe command is as follows:
“O Prophet, tell your wives and your daughters and the wives of the believers to lower over them part of their jilbabs. It is more appropriate that they are known and not harmed. And even Allah Forgiving and Merciful.
The reference of jilbab in the above chapter would indicate that the Islamic dress code for women consists not only of a headscarf which covers the head, neck and chest, but also includes the general attire which should be long and loose. the jilbab in the Arabic dictionary as Lisanu–al Arabloose outer garment.
In one of Hadiths (sayings of the Prophet), the explanation of the Quranic verses to his sister-in-law Asma is as follows:
“O Asma! It is not okay for a woman to show her parts other than her hands and face to strangers after she starts menstruating.
Narrated by Abudawud ref: hadith No 4092 kitab al libas(book of clothes) Sunan Abu Daoud.
Thus, taking into account and analyzing the Koranic injunctions and the foregoing Hadithit is clearly defined and evident that it is a Farz covering the head and wearing the robe with long sleeves except for the part of the face and exposing the body otherwise is prohibited (haraam) and the same practice does not fall under the restrictions imposed by Article 26 of the Indian Constitution.
At any rate Farz in Islam, it is undeniably the essential part of the religion and therefore prevents the state from any form of interference and in doing so leads to the denial of fundamental rights and would have great ramifications in the near future.
The above discussions would show that covering the head and wearing a long-sleeved dress by women was treated as an essential part of the Islamic religion. It follows a fortiori; Article 25(1) protects this dress code requirement.
Then the only question that remains is would the essential practice as above harm public order, morals and health or is it necessary to regulate this essential practice to give effect to the other provisions of Part III of the Constitution.
The rationale for the prescription of dress code by colleges and now the BJP government has officially come with the order amid spiraling student protests is to ensure equality, integrity and public order. The exceptions to section 25 do not mention anywhere that the state can intervene on the basis of equality and integrity, which is clearly bizarre. In terms of public order, it must specify how the wearing of hijab would affect the community or the general public.
The quarrel against the Muslim minority is a sign of the ongoing and future establishment of an extremist state, which would undermine the sanctity and diversity of its existence and also push India into alignment with France .
However, recent episodes in India have highlighted 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 should not be confused. Obviously, the cause of both will be ruined if one is used to achieve the other’s goals.
(The authors are students of the Faculty of Law, University of Kashmir, Srinagar. The opinions expressed in this article are those of the author and do not purport to reflect the opinions or views of Kashmir Life.)