The Hijab Row

Context:

A number of Muslim girl students in Udupi, Karnataka, have been refused entry into their college.
The administration objects to them covering their heads with a hijab.
The girls invoke the protection of the Indian Constitution, whose preceptor Dr. B.R. Ambedkar once wrote, “the world owes much to rebels who would dare to argue in the face of the pontiff and insist that he is not infallible”.

Udupi has a proud tradition of having rebels who have challenged established norms that have not stood the test of reason.
In the 16th century, priests at the Krishna temple in Udupi prevented a lower caste devotee, Kanakadasa, from entering it.
He refused to go away and began composing and singing kirtans from the courtyard outside, while waiting to secure a sight of the deity.
Even after many days, the priests did not relent but a miracle intervened.
The idol of the deity which until then faced eastwards, miraculously turned 180 degrees to face west, and then broke open a rear wall to create a window through which Kanakadasa could have his darshan.

It would be difficult for the courts to decide what is essentially a part of the religion or what are the religious practices which have emerged at different point of time historically.
Justice D.Y. Chandrachud in the Sabarimala case, bemoaned, “… compulsions nonetheless have led the court to don a theological mantle.
The enquiry has moved from deciding what is essentially religious to what is an essential religious practice.
In the case of the hijab, there is no doubt that an observant Muslim woman might insist that the following verses from the Koran mandate her to keep her head covered. (Chapter 33, Verse 59).

Over the years, the Supreme Court (SC) has evolved a practical test of sorts to determine what religious practises can be constitutionally protected and what can be ignored.
In 1954, the SC held in the Shirur Mutt case that the term “religion” will cover all rituals and practises “integral” to a religion.
The test to determine what is integral is termed the “essential religious practises” test.
The test, a judicial determination of religious practises, has often been criticised by legal experts as it pushes the court to dive into theological spaces.

Article 25(1) of the Constitution guarantees the “freedom of conscience and the right freely to profess, practise and propagate religion”.
It is a right that guarantees a negative liberty — which means that the state shall ensure that there is no interference or obstacle to exercise this freedom.
However, like all fundamental rights, the state can restrict the right for grounds of public order, decency, morality, health and other state interests.

In this context it is important to remember Justice R.F. Nariman’s dictum in the Sabarimala review which says, “… After all, in India’s tryst with destiny, we have chosen to be wedded to the rule of law as laid down by the Constitution of India.
Let every person remember that the “holy book” is the Constitution of India!

Source The Hindu