Explained: Freedom of religion and attire – The Indian Express

After six students were banned from entering a college in Karnatakas Udupi district for wearing a hijab last month, the row over whether educational institutions can impose a strict dress code that could interfere with rights of students has spilled to other colleges in the state. The issue throws up legal questions on reading the freedom of religion and whether the right to wear a hijab is constitutionally protected.

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.

Over the years, the Supreme Court has evolved a practical test of sorts to determine what religious practices can be constitutionally protected and what can be ignored. In 1954, the Supreme Court held in the Shirur Mutt case that the term religion will cover all rituals and practices integral to a religion. The test to determine what is integral is termed the essential religious practices test.

In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself, the SC had held in the Shirur Mutt case. So the test, a judicial determination of religious practices, has often been criticised by legal experts as it pushes the court to delve into theological spaces.

In criticism of the test, scholars agree that it is better for the court to prohibit religious practices for public order rather than determine what is so essential to a religion that it needs to be protected.

In several instances, the court has applied the test to keep certain practices out. In a 2004 ruling, the Supreme Court held that the Ananda Marga sect had no fundamental right to perform Tandava dance in public streets, since it did not constitute an essential religious practice of the sect.

While these issues are largely understood to be community-based, there are instances in which the court has applied the test to individual freedoms as well.

For example, in 2016, a three-judge Bench of the Supreme Court upheld the discharge of a Muslim airman from the Indian Air Force for keeping a beard. Justices T S Thakur, D Y Chandrachud and L Nageswara Rao distinguished the case of a Muslim airman from that of Sikhs who are allowed to keep a beard.

Regulation 425 of the Armed Force Regulations, 1964, prohibits the growth of hair by Armed Forces personnel, except for personnel whose religion prohibits the cutting of hair or shaving of face. The court essentially held that keeping a beard was not an essential part of Islamic practices.

The court did not examine religious practices as required in the Shirur Mutt case, but referenced an input by senior advocate Salman Khurshid.

During the course of the hearing, we had inquired of Shri Salman Khurshid, learned senior counsel appearing on behalf of the Appellants whether there is a specific mandate in Islam which prohibits the cutting of hair or shaving of facial hair. Learned senior counsel indicated that on this aspect, there are varying interpretations, one of which is that it is desirable to maintain a beard. No material has been produced before this Court to indicate that the Appellant professes a religious belief that would bring him within the ambit of Regulation 425(b) which applies to personnel whose religion prohibits the cutting off the hair or shaving off the face of its members, the verdict stated.

While this has been put to courts on several occasions, two set of rulings of the Kerala High Court, particularly on the right of Muslim women to dress according to the tenets of Islam, throw up conflicting answers.

In 2015, at least two petitions were filed before the Kerala High Court challenging the prescription of dress code for All India Pre-Medical Entrance which prescribed wearing light clothes with half sleeves not having big buttons, brooch/badge, flower, etc. with Salwar/Trouser and slippers and not shoes.

Admitting the argument of the Central Board of School Education (CBSE) that the rule was only to ensure that candidates would not use unfair methods by concealing objects within clothes, the Kerala HC directed the CBSE to put in place additional measures for checking students who intend to wear a dress according to their religious custom, but contrary to the dress code.

If the Invigilator requires the head scarf or the full sleeve garments to be removed and examined, then the petitioners shall also subject themselves to that, by the authorised person. It is also desirable that the C.B.S.E issue general instructions to its Invigilators to ensure that religious sentiments be not hurt and at the same time discipline be not compromised, Justice Vinod Chandran ruled.

In Amna Bint Basheer v Central Board of Secondary Education (2016), the Kerala HC examined the issue more closely. Justice P B Suresh Kumar, who allowed the plea by the student, held that the practice of wearing a hijab constitutes an essential religious practice but did not quash the CBSE rule. The court once again allowed for the additional measures and safeguards put in place the previous year.

But both these cases involve restrictions placed on the freedom of religion for a specific purpose to ensure a fair examination process and the CBSE had cited a resource crunch to check every candidate if they allowed autonomy in choosing their dress.

However, on the issue of a uniform prescribed by a school, another Bench ruled differently in Fathima Tasneem v State of Kerala (2018). A single Bench of the Kerala HC held that collective rights of an institution would be given primacy over individual rights of the petitioner. The case involved two girls, aged 12 and 8, represented by their father who wanted his daughters to wear the headscarf as well as a full-sleeved shirt. The school that refused to allow the headscarf is owned and managed by the Congregation of the Carmelites of Mary Immaculate (CMI) under CMI St Joseph Province.

Petitioners cannot seek imposition of their individual right as against the larger right of the institution, Justice Muhamed Mustaque held.

The father appealed before a division Bench of the High Court. The division Bench headed by Justice Vinod Chandran dismissed the appeals as it was submitted that the appellants-petitioners are not now attending the School and are no more in the rolls of the respondent-School.

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Explained: Freedom of religion and attire - The Indian Express