– Ammarah Ishaq and Mohammed Salman Siddiqui
The recent and highly contentious ban of Hijab in educational institutions has sparked intense legal debates across India, challenging long-standing practices that have been integral to the identity of many students in case of Zainab Abdul Qayyum Choudhary and Ors. vs Chembur Trombay Education Societys and Ors, which has now escalated to the Supreme Court. The petitioners, who are law-abiding students, contend that the ban infringes upon their fundamental right to religious expression as enshrined under Article 25 of the Constitution. They argue that wearing the Hijab alongside their school uniforms does not disrupt public order or impede the educational process but instead serves as a critical expression of their faith. The Bombay High Court dismissed their claims, ruling that the Hijab does not constitute an essential religious practice within Islam, thereby excluding it from constitutional protection. This ruling, now under the scrutiny by the Supreme Court, that has issued a stay order on an instruction by a private college in Mumbai, which had prohibited students from wearing the Hijab, caps, or badges on campus. The case has been scheduled for further hearings in November, with the bench allowing the college to seek modification of the order if necessary.
Judicial Authority vs. Individual Autonomy: A Contested Jurisprudence
The Bombay High Court’s ruling, which upheld the ban on the hijab in educational institutions by invoking the “essentiality test,” raises a critical question: Is it within the judiciary’s purview to delineate what constitutes an essential religious practice? This test, originally conceptualised to protect religious practices from state interference, has paradoxically evolved into a tool for judicial overreach, wherein courts have assumed the role of arbiters of religious orthodoxy. The judiciary’s intervention in determining the essentiality of the hijab to Islam not only encroaches upon religious autonomy but also strips individuals – particularly women – of their agency. The argument that the hijab has “something to do with culture but certainly not with religion” reflects a reductive approach that fails to acknowledge the nuanced and deeply personal nature of religious expression. By imposing a binary framework on what is inherently a complex and multifaceted issue, the court’s ruling undermines the very essence of religious freedom as enshrined in Article 25 of the Constitution of India.
The application of the essentiality test, as seen in the Karnataka High Court’s verdict, illustrates a troubling trend where courts, rather than safeguarding religious liberties, have begun to circumscribe them. The judiciary’s inconsistent application of this test – demonstrated by disparate rulings on issues like instant right to keep beard as essential practice, triple talaq and mosque land disputes – exposes the inherent arbitrariness of this doctrine. Such judicial intervention not only contravenes the constitutional guarantee of religious freedom but also disregards the individual’s right to personal choice.
In the case of the hijab, the court’s focus on the essentiality test, at the expense of considering the agency and choice of Muslim women, reveals a paternalistic attitude that is antithetical to the principles of individual autonomy and religious pluralism. This approach not only restricts religious freedom but also perpetuates a culture where the state – and by extension, the judiciary – asserts undue authority over deeply personal and spiritual matters.
The Legitimacy of the Hijab in Public Institutions: Upholding Constitutional Rights
The struggle for quality education among Muslim women has historically been fraught with challenges, particularly within a socio-cultural milieu that often undervalues their right to education. Despite a gradual shift in mindset within the community, where education is increasingly embraced, the literacy rate among Muslim women remains alarmingly low, a reality further compounded by the pervasive societal barriers that impede their educational advancement. In this context, the hijab – far from being a mere cultural symbol – is an intrinsic part of a Muslim woman’s religious identity, deeply embedded in her spiritual and moral convictions. It serves as an outward expression of her faith and is a manifestation of her constitutionally guaranteed right to religious freedom under Articles 25 and 26 of the Constitution. The denial of this right within public educational institutions not only infringes upon her religious liberties but also perpetuates the educational marginalization of Muslim women, exacerbating the systemic inequalities they face.
Judicial Precedents and Global Jurisprudence: A Call for Constitutional Safeguards
The constitutional validity of the hijab in public institutions must be evaluated not only through the lens of domestic legal principles but also in light of foreign judicial precedents that have upheld religious freedoms in educational settings. The Udupi hijab case, which touches upon the sensitive intersection of religious freedom and educational access, demands a similarly nuanced and reformative approach from the Indian judiciary. Courts in other democracies, have consistently recognised the right of students to express their religious beliefs through attire, emphasising the importance of accommodating religious diversity within public institutions. To mention a few, the Swiss Supreme Court allowed a Muslim father to remove his daughter from mandatory swimming classes of schools on ground of “strong faith”. The High Court of England and Wales in the United Kingdom permitted a Sikh girl to wear a “kara” (bangle) to school because it was an expression of her Sikh faith and “any rejection of her freedom of religion would be blatant discrimination”.
Comparative jurisprudence offers invaluable insights into the perils of judicial overreach. In the United States, the Tinker v. Des Moines decision affirmed that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Similarly, the Constitutional Court of South Africa, in MEC for Education: KwaZulu-Natal & Ors vs. Pillay, upheld the right of students to express their religious identity through attire, recognising the importance of religious autonomy in a pluralistic society.
These precedents show the fundamental principle that religious practices are not for courts to determine but are the purview of the religious community itself. The current trend of Indian courts to impose their interpretation of religious tenets, under the guise of the ERP test, stands in stark contrast to these global benchmarks, raising questions about the judiciary’s respect for religious plurality and individual choice. It is imperative that Indian courts draw upon these international legal standards to protect the rights of Muslim women, thereby advancing an inclusive and equitable educational environment that respects and upholds the constitutional values of secularism and religious pluralism.
Courts in Controversy: Striking the Balance Between Law and Religion
The constitutional validity of denying Muslim women access to education for wearing the hijab must be critically examined in light of the principles laid down in both Indian and international jurisprudence. The Kerala High Court, in Amnah Bint Basheer vs. Central Board of Secondary Education, explicitly recognised the hijab as an essential religious practice under Islamic law, relying on Quranic injunctions and Hadith to affirm that “it is a farz to cover the head and wear the long-sleeved dress”, rendering any contradictory actions as haram. The court brought out that while diverse interpretations exist, the fundamental right to religious freedom, safeguarded by the Constitution, must be upheld in preference to a purely religious verdict. The balancing approach adopted by the Kerala High Court, allowing for minimal intrusion into religious practices during examinations by employing female invigilators, stands as a sound application of proportionality.
The constitutionality of such denials must also be scrutinized under the right to privacy as affirmed by the Supreme Court in the landmark judgment of K.S. Puttaswamy vs. Union of India, where privacy was enshrined as a fundamental right encompassing “spatial control, decisional autonomy, and informational control.” The court specifically highlighted that decisional autonomy includes “intimate personal choices such as those governing faith or modes of dress.”
This interpretation places the right to wear the hijab firmly within the ambit of privacy rights, demanding that any state action limiting this right must satisfy the three-pronged test of legality, legitimate state aim, and proportionality. The forced prevention of girls from entering educational institutions without notice or legal justification is not only unconstitutional but also stands in stark contrast to the foundational ideals of unity in diversity and fraternity that underpin the Indian Constitution. As international jurisprudence, including decisions from the European Court of Human Rights, has consistently upheld, any restriction on religious expression in educational settings must be narrowly tailored and proportionate to the intended objective, failing which, such actions amount to a grave violation of fundamental human rights.
Judicial Overreach in Determining Religious Essentiality
The judiciary’s encroachment into religious domains, particularly through the Essential Religious Practices (ERP) test, raises profound questions about the extent of judicial authority. The Supreme Court of India’s application of the ERP test, as established in Shirur Mutt, places the courts in the precarious position of deciphering religious doctrines – an inherently subjective and theological exercise. The Constitution of India, while safeguarding the freedom of religion under Articles 25 and 26, did not envisage a scenario where the judiciary would assume the role of religious arbiter.
As the U.S. Supreme Court wisely articulated in Engel v. Vitale, “Religion is too personal, too sacred, too holy to permit its unhallowed perversion by a civil magistrate.” The decision to deem what constitutes an essential religious practice should rest solely with the adherents and religious authorities of that faith, not with secular courts that lack theological competence.
The Myth of Incompatibility: Can Education and Religious Freedom Coexist?
The controversy surrounding the Hijab is not a matter of religious essentiality but rather a question of constitutional rights and individual choice. The framing of this issue as one of “constitutional secularism,” as seen in recent judicial pronouncements, is a reductionist approach that fails to account for the nuanced intersection of personal liberty and religious expression. Courts, by their very nature, are ill-equipped to navigate the complex theological terrain that defines religious practices. By what authority does the state dictate the religious practices of its citizens? The Constitution, in its spirit, shuns such overreach and envisions a harmonious coexistence of individual rights and religious freedoms.
The Constitution, as interpreted by the framers, intended for religion to be a personal matter, free from state interference. The insistence on applying the ERP test to the Hijab is not only jurisprudentially troubling but also reflects a misunderstanding of the Constitution’s intent. This issue should not be viewed through the narrow lens of religious conformity but as a broader question of respecting individual rights in a diverse society. The true question is not whether the Hijab is essential to Islam but whether the state has the right to infringe upon an individual’s choice to wear it.
In the Constituent Assembly, Tajamul Husain proposed an explanation to Article 25, suggesting that individuals should be prohibited from displaying religious symbols on their bodies. This proposal, however, was rejected in recognition of India’s pluralistic ethos and the fundamental right to identity assertion within a diverse society. As Ms. Farrah Ahmed from Melbourne Law School aptly questioned, “It is very puzzling for anybody to say that wearing a hijab or wearing a headscarf is inconsistent with your freedom.” This statement resonates with the principle that the choice to wear the Hijab is an exercise of personal liberty, one that should be respected and protected by the state, not scrutinised or curtailed.
To enforce the removal of religious symbols is not merely an exclusionary act against a particular community but a direct encroachment on the autonomy and dignity of individuals. The Constitution embodies a liberty model where personal choices are respected and protected, as opposed to a control model that seeks to impose uniformity through arbitrary state intervention. The judicial overreach into determining what constitutes an “essential religious practice” has resulted in a narrowing of the freedoms guaranteed under our Constitution, fundamentally undermining individual autonomy.
As students and practitioners of law, we are instructed that the Constitution guarantees the freedom to practice one’s religion, not solely those practices deemed “essential” by an external arbiter. The selective application of the essentiality doctrine, whereby judges trained in secular jurisprudence rather than theology assume the authority to define religious practices, is deeply problematic. The rationale that Hijab, purdah, or veil do not constitute essential practices simply because they were not observed at the inception of the religion reflects a gross misinterpretation of religious freedom.
Furthermore, the judicial assertion that a practice must be considered essential only if its omission invites religious sanction is inherently flawed. If such a standard were applied consistently, then practices like homosexuality and adultery – condemned in nearly all religious texts – should remain criminalised, yet they have been decriminalised. The role of the judiciary is not to reform religious doctrines but to uphold the rule of law. The relationship between an individual and their faith is a private matter, outside the purview of secular adjudication. Is it constitutionally sound to force children to choose between their right to practise religion and their right to education, thereby imposing a form of discrimination under the guise of promoting equality and uniformity?
Justice Sudhanshu Dhulia, in his dissenting opinion, emphasised that the essential religious practice doctrine was not pertinent to the dispute at hand, and that the Karnataka High Court had erred in its application. The primary concern, he asserted, should be the education of the girl child: “Are we enhancing her life prospects through these restrictions?” Is the wearing of a Hijab genuinely a threat to India’s unity and integrity? Dushyant Dave compellingly argued that if a Muslim woman sincerely believes that wearing a Hijab is integral to her religious practice, no state authority or judicial body has the jurisdiction to decide otherwise.
Upholding Constitutional Values: The Future of Religious Freedom in India
Justice J.S. Verma’s observation that “The Court is supreme, but not infallible” reminds us of the right to dissent from judicial decisions. As the Supreme Court has stayed the Mumbai College’s ban on hijab and other religious symbols, there is renewed hope that justice will be served in light of the compelling arguments presented. The Court’s skepticism about the college’s rationale, as expressed by Justices Sanjiv Khanna and Sanjay Kumar, puts light on a critical examination of the ban’s implications on individual freedoms. Justice Khanna’s remarks – “How are you empowering women by telling them what to wear?” – and Justice Kumar’s probing question – “Will it not be up to the girl what she wants to wear?”—highlight a fundamental concern for upholdingconstitutional rights andpersonalautonomy.
These observations reflect a judicial awareness of the nuanced interplay between religious expression and institutional policies. The stay order and the forthcoming review of the ban provide an opportunity for the Court to reaffirm constitutional protections under Articles 19(1)(a) and 25, ensuring that personal freedoms are not unduly compromised. As the Supreme Court prepares to revisit this issue in November, the legal community and affected individuals await a resolution that aligns with the principles of secularism, non-discrimination, and respect for individual rights. The upcoming hearings are anticipated with optimism, as they hold the promise of upholding fundamental freedoms and reinforcing the constitutional values that are vital to our democracy.
[The authors of this article, Ammarah Ishaq and Mohammed Salman Siddiqui are third-year law students at the University College of Law. They possess a keen dedication and passion towards researching and writing on legal and societal issues. Their writings are prominently featured in India’s leading law portals, including Live Law, Bar and Bench, and The Leaflet, in addition to their contributions to Radiance, The Companion and Aura E-Magazine.]
