The upholding of a ban on the hijab in a college’s dress code by the Bombay High Court brings contested questions for India’s secularism back to the fore. Divyansh Nautiyal outlines the complexities involved in categorising the hijab as an essential religious practice.
In India, the question of wearing the hijab was reignited before the Bombay High Court (HC). The Court struck down a challenge to a dress code in a college in Chembur which prevented the students from wearing the niqab or hijab – in the case of Zainab Abdul Qayyum Choudhary & Ors. v. Chembur Trombay Education Society’s NG Acharya and DK Marathe College and Ors.
The petitioners challenged the order on the grounds that the hijab is an essential religious practice which lies at the core of their freedom to practice their religion under Article 25 of the Indian Constitution. Moreover, that it violated their right to freedom of expression under Article 19 and their disrobing directly negated their right to dignity and bodily integrity. The Bombay HC cited a controversial judgement of the Karnataka HC which is currently under challenge in the Supreme Court, and upheld the ban on the hijab, affirming that it was not an essential religious practice. Furthermore, the court held that the dress code applied uniformly to all students irrespective of their caste, creed, religion, language, etc., and hence, a case for discrimination by the petitioners stood on a weak footing.
The HC’s simplistic interpretation of the problem is bereft of any context to the social fabric and lived realities of India as a country. It reopens a pandora’s box of questions for the model of secularism exemplified by India.
Indian secularism – A case of distinction
The Indian model of secularism is distinctly positive in nature as opposed to the European model which negates religion from public life. This means that religious symbols are very much a part of the public life in India. So, while the state has to maintain a neutrality to all religions, it has to do so by allowing all religions to thrive equally. Take this in comparison to a country like France which eschews the display of religions in public life and has attempted to ban the hijab in public places in the last few years.
In the Supreme Court’s 1-1 split decision on the banning of the hijab in a government college in Karnataka, Justice Dhulia emphasised the plural nature of the Indian society and reaffirmed that its diversity was a primary treasure and not a necessary evil. Fraternity is a constitutional value for India which requires one to be tolerant and reasonably accommodating of the religious beliefs and practices of others. The positive model of secularism can only thrive when the country’s religious plurality is not only recognised but actively protected and promoted.
Internationally, the question of wearing the hijab has also been a strong site of contestation from France and Turkey to Iran and Switzerland. It is pertinent to note that Article 18 of the International Covenant on Civil and Political Rights reads – “Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”
This affirms an individual’s right to practice their religion in the public or private sphere as central to their right to freedom of religion. In 2010, when France passed a law which, in effect, banned the wearing of the hijab, the United Nations Human Rights Committee held it to be in violation of Article 18 and Article 26 (right to equality) of the ICCPR in the landmark cases of Miriana Hebbadj v. France and Sonia Yaker v. France. The choice of clothing was strongly and entirely vested with the woman herself and the forceful veiling and disrobing of a woman were held to be equally in violation of their individual agency.
The essential religious practices test – Negating individual agency
The Bombay HC has used the essential religious practices test to hold that the ban on the hijab will not be in violation of their right to freedom of religion under Article 25. This test developed as a judicial doctrine in constitutional law jurisprudence in India over time through cases like The Commissioner, Hindu Religious Endowments, Madras v. Lakshmindra Thirtha Swamiar of Sri Shirur Mutt and Commissioner of Police and others v. Acharya J. Avadhuta. The test determines the core beliefs upon which a religion is founded. In determining which practices form the cornerstone of a religion, it holds that any change to them would fundamentally alter the character of the religion or the belief itself.
The test has been criticised on numerous grounds. First, it begins with the problematic assumption that judges will have the expertise and knowledge to determine questions in the domain of theology. Second, the test has been applied inconsistently and covered only a very narrow set of religious practices. Due to the test, a religious dance which was recognised as sacred in the scriptural injunctions of a community was not held as essential to its practice. In another case, the mosque was not considered essential to the practice of Islam. However, going beyond its arbitrary and judge-centric application, the test becomes particularly problematic in this case as it negates the individual agency of the women who wish to don the hijab. If the hijab is held as an essential religious practice, it essentially creates a legal fiction where it becomes compulsory for Muslim women to wear the hijab. On the other hand, by not deeming it as an essential religious practice, women’s actual choice and agency is being denied. The application of the test should be abandoned as it presents a conundrum from both ends by denying the agency of the individual.
Moreover, clothing is a non-verbal form of expression of one’s identity which needs to be protected. The same has been recognised in different jurisdictions across the world. In the case of Tinker v. Des Moines Independent School District, the Supreme Court of the United States held the black armbands worn by school students to protest against the Vietnam War as constitutionally protected speech. Similarly, the Supreme Court of India in the case of NALSA v. Union of India, laid down that the freedom of expression, which is guaranteed under Article 19 (1)(a) of the Constitution, can also be manifested through one’s clothing among other ways.
Conclusion
The stress on uniformity and the use of the essential religious practices test results in a simplistic interpretation which adversely impacts religious freedom. In dismissing the argument of discrimination raised by the petitioners, the Bombay HC failed to recognise the various axes of personal identity which were at play. While the order argues for uniformity, it negatively impacts the Muslim girls who wish to wear the hijab as an expression of their personal and religious identity. Moreover, analysing this case from a single axis of discrimination will fail to encapsulate the intersectional nature of discrimination which is pertinent to this case. The order doubles down on both the gender and religion of the petitioners and hinders their access to a public space like the government educational college. It becomes more stark when read in light of the Sachar Committee Report (2006) which noted Muslim women have less access to education than other communities in India. The Bombay HC, much like the Karnataka HC, missed out on a chance to reasonably accommodate the needs of the petitioners. It could have furthered the ideal of substantive equality by not only recognising the intersectional discrimination in this case but also remedying it by emboldening the right to expression and the right to religious expression. It remains to be seen how these questions pertaining to individual rights and India’s model of secularism will be answered by the apex court of India.
Note: This article gives the views of the author, not the position of LSE Religion and Global Society nor the London School of Economics and Political Science.
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