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Freedom of religion & ‘attire’

  • Category
    Polity & Governance
  • Published
    16th Feb, 2022

Context

Owing to entry ban of students who were wearing hijab, the debated over the hijab and issues of freedom of religion and attire has risen in the southern Indian state of Karnataka.

Background

  • After 6 female students from Udupi were not allowed to enter their college campus, because they were wearing the hijab, the question on freedom of religion and its profession has aroused.
  • Right to profess religion may include the right to dress according to religious injunctions and hence protection of this right is constitutionally mandated.
  • Karnataka government has argued that it has not made uniforms compulsory in pre-university colleges but it is also not against the imposition of ban on hijabs in educational institutions and banning them is not against right to practice and profess religion.

Analysis

What does the latest order of Karnataka Government say?

  • Uniforms prescribed by the local college development council should be followed by students of government Pre-University colleges.
  • Where no uniform is prescribed for Pre-University students, the order mandates that unity amongst students must be ensured.
  • All public schools have to strictly abide by the uniform policy mandated by the government and the private schools can have uniforms as decided by their councils.

Where does the state government get its power to mandate uniform?

  • According to Section 7 (2) (g) (v) of the Karnataka Education Act, 1983, the state government can prescribe rules for curricula to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities to renounce practices derogatory to the dignity of women.
  • State government has powers under Section 133 (2) of the Education Act, 2002 to issue directions to educational institutions for implementing provisions of the law according to needs of the state.

What does the Indian Constitution say about freedom of religion?

  • Article 25 guarantees the freedom of conscience, the freedom to profess, practice and propagate religion to all citizens.

What is the reason given by the Government of Karnataka to support ban on Hizab?

  • Wearing hizab, according to the Department of Education, Government of Karnataka- is affecting equality and uniformity amongst students in the education institutions.

Judiciary’s stand on the issue-

  • The Supreme Court of India has put forward the Doctrine of Essentiality in Shirur Matt case of 1954.
  • The SC in the above case stated that the term religion in the Constitution of India included all those rituals and practices that are integral to a particular religion. Such rituals and practises are to be considered essential for the religion.
  • The SC in the above case decreed that protection of such essential rituals and practices is the duty of Supreme Court of India.
  • Supreme Court in this case did not define what all are the essential practices and rituals but reserved with judiciary the right to decide about the same as per the facts and circumstances of each case.
  • In Amna Bint Basheer vs Central Board of Secondary Education, the Kerala High Court held that wearing Hizab is an essential religious custom in Islam. But it also refrained from striking down the dress code prescribed by the CSBE for students.
  • In 2018, in the Kerala High Court in Fathima Tasneem vs State of Kerala held that the collective right of institution will have precedence over the individual right of the petitioner.
  • In the above case two girls had filed petition after their school declined to allow them to wear headscarf.

What Next?

The Karnataka High Court would hear the petition on whether girls have the right to wear Hizab in the educational institutions.

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