Hijab and Democratic Constitutionalism

One of the widely circulated tweet in social media during the time of Karnataka school children's Hijab row is that "If its imposed, do away with it, and if its your right, fight for it." Not just Hijab, every religious practices when it comes to the constitutional scrutiny in india, will invite hot debates in the society. Supreme court as a final guardian of fundamental rights in india, will come under social auditing when it deals with such issues. In 2018-19, it was about entry of women into sabarimala, in 2022 it was about wearing Hijab in schools. Although these issue is in the whirl of theology, Fundamental rights, and philosophy, the constitutional courts have the responsibility to judge and the executive have their duty to curb violence.

In the state of Karnataka, courts intervened in the issue of wearing hijab as a part of school uniforms and Karnataka high court observed the tussle by providing three key opinions. It said that the use of Hijab is not an essential religious practice(ERP) and there is no substantive right to freedom of expression or privacy in a classroom. So, the Rights of no one is at stake here. The high court further added that the uniform rules in the school did not violate or discriminate either directly or indirectly against Muslim students.  So the court said that this rule from the school authorities cannot be considered as a violation of Article 14 ie Right to equality.

When we look at the mediaeval times to understand the Purdah system, this practice of keeping women in seclusion and asking them to veil their faces in presence of outsiders, was widespread among upper class women. The practice of secluding women from vulgar gaze was practised among upper-class Hindus and was also in vogue in ancient Iran, Greece, etc.. The Arabs and Turks adopted this custom and brought to India with them. And, growth of Purdah has been attributed to the fear of Hindu women being captured by the invaders. In the age of violence, women were liable to be treated as prizes of war. Perhaps, the most important factor for the growth of Purdah was social. It became a symbol of upper classes in society and all those who wanted to be considered respectable tried to copy it. Also religious justifications became prevalent after these era, in India.

From the time of the autocratic monarchs with religious sanctions, India now became a sovereign nation with it's own secular constitution. As we follow positive secularism, the state shall interfere in religious affairs without favouring or discriminating any religion in particular. Article 25 of the indian Constitution guarantees the freedom of religion, freedom of conscience, and the freedom to profess, practice and propagate religion. Even though the freedom of conscience is absolute, the remaining religious freedoms are qualified fundamental rights, which means, these can be restricted by the state on the basis of public order, morality, health and other provisions mentioned in part 3. 

Further, The state can exercise these reasonable restrictions for the secular practices within the religion. If anything that is purely religious, or considered as the core ideals of that particular religion, the state don't have any role to comment on it. To determine what is a secular practice and what is a religious practice, the Supreme court has come up with a concept of "Essential Religious Practice Doctrine " in Shirur Mutt case , 1954. The court has stipulated some criteria to differentiate secular and religious practice in the verdict of this case and this is what we follow to scrutinise majority of the religious issues when it matches with the values of constitution.

With the Principles of ERP, the Supreme Court has arrived at some landmark judgment in Temple entry case , 1958( "Untouchability is not an essential part of Hindu religion.") and in Ismail farooqui case 1994,( "Mosque is not an essential part of Islam ") . 

As the question whether hijab is essential part of Islam or not, is question that's yet to be answered by the court under this principles of ERP and the 'doctrine of Eminent Domain' ( Ismail farooqui case). Meantime, the constitutional experts have come across with some another arguments to question the authority of the courts to judge upon the religious affairs. They opines that the entire concepts of ERP is flawed, and the urge the courts to step out from the religious tenets. This argument from the Constitutional experts may not be taken seriously by the court as the Supreme court is smart enough to keep it's authority Supreme at any cost. 

Dilemma here in this case is that If Hijab is to be considered as an essential religious practice, the court should be understood that this is widely practised. But in fact it's not. Secondly of Hijab is essential, it's may have to consider as imposition. And if it's an imposition, it cannot be considered as a choice of Muslim women. The matter of fact is that some people consider it as essential and some others not. As the judgment of the court is not with respect to the public will, Hijab will be a tough veil that covers up lots of liberal ideas.

Another important pointer in this regard is the Principle of 'Reasonable Inclusion'. This is the best possible conclusion to which one can arrive at this point. It goes on to say that even if the state can restrict ones choice on the basis of reasonableness, the ultimate aim of the state should be,not to exclude someone, but to include them. Here, ultimate aim is the education of the girl children, so the court is expected to arrive at an amicable solution by allowing Hijab as a part of the uniform and to uphold the value of education than the religious radicalism.