INTRODUCTION
The Constitution of India was framed with the purpose to free the citizenry from the clutches of various forms of inequality that entered into the realm of Indian Politics and society with the advent of various foreign invaders. India, being a multi-cultural, multi-religious, and multi-linguistic nation, has a set code of regulations and legal procedures to instill a sense of equality along with letting everyone practice their personal beliefs. One impactful and significant principle of all other principles is Secularism, which is based on the bias of the state towards the citizens of different religious faith. Secularism prescribes that the state must not have any official religion and no inclination towards any particular religion. The nature of India being a secular state needs strengthening as is apparent from the current controversy of the Hijab row. The controversy is about a group of Muslim girls wanting to do hijabs with their uniforms which is being seen as a violation of the prescribed dress code whereas the hijabis are claiming it as a right to practice their religion enshrined upon them by Article 25[1].
The imperative question involved here is whether the act of donning religious symbols in public institutions fits into the spirit of secularism upheld by the Indian Constitution or whether the act of ceasing people to carry their religious symbols fits into the definition of secularism given by the Constitution. There are nations like Turkey and France that avert their citizens from carrying religious symbols in public spaces and still are secular. For this, we have to understand the various kinds of secularism adopted by different nations depending upon their social fabric. Secularism is of two types: Positive secularism, according to which citizens of diverse religious faiths are permitted to do their religious symbols and attire in public spaces, and Negative secularism, where citizens are not allowed to demonstrate their religious affiliation publically. India is a country that has diversity in every aspect, from the languages spoken to the religion followed. Our social fabric is in itself extremely varied where religion and spirituality play a substantial part in our lives. In such a country, imagining the adoption of negative secularism seems unachievable. Hence, to respect the personal beliefs and practices of all the people, our constitution confirms positive secularism. The version of secularism upheld by us neither does endorse the thorough separation of state from religion nor is anti-religion. Secularism in India is multi-faceted and is an appreciation of multiple ethnicities.
Analysis of precedents on the issue
There have been several precedents on the issue of donning religious symbols and the judgment in most of them has upheld positive secularism. The controversy regarding hijab or burka is not brand new. It happened back in 2015 when the number of cheating cases peaked because of which the All India Pre-medical Entrance Exam was canceled and CBSE notified all the students to wear light dresses and barred the students from wearing Hijab. This decision, when challenged, went to court where it was contended that the state is not permitted to put a blanket ban on religious garments considering the multiplicity of religions and cultures[2]. This is a coherent case of the court taking into regard, the practice of religion in public spaces even in the face of a challenge to it and upholding respect for people’s religious manifestations. In the case of Ratilal Panachand Gandhi[3], it was observed that Article 25 does not just apply to religion but also to religious practices that include donning religious symbols or attire to manifest affiliation. Further, the practice in question has to be proved to be an essential part of one’s faith and should have been followed since time immemorial to strengthen their importance to manifest one’s religious identity.
In the case of Amnah Bint Basheer and Ors. v. CBSE and Ors[4]., the Kerala High Court clarified that Hijab is mandatory on Muslim women according to Quran and Hadiths and hence, is to be considered an essential practice. The court in this case directed the CBSE to accommodate people of different religious faiths from the next session. The court acknowledged the embodiment of positive secularism i.e., protecting and respecting all the religions and their display, even in public. Such precedents facilitate providing religious liberty to individuals without any sort of arbitrary interference by the State. The nature of secularism in India has been upheld by the courts in the aforementioned cases considering the version of secularism practiced in India which is derived from the Indian philosophical concept of ‘Sarva-dharma-sambhava’. The judiciary acts as a torchbearer for shaping societal perspectives and determining the accepted legal regulations. Such instances of acknowledging the diversity of religious beliefs present in the country and basing judgments on it provide religious expression a legal validation that further leads to making of perspectives in favor of acceptance of the welcoming version of secularism that our Constitution stands by.
Conclusion
In the ongoing controversy concerning the students willing to wear Hijab as means of manifesting their religious identity in educational institutions, the act of averting them to do so goes against the values of secularism our country’s constitutional law stands by. The authorities of the institution claim violation of the uniform prescribed by the students willing to accompany it with their hijabs. The imperative point of understanding here would be to acknowledge the social fabric of our society that subsumes people of varied faiths and respect the diversity. Manifestation of affiliation with any particular religion or culture in a state where it has been constitutionally authorized to do should not be a reason to avert students from their basic right of education. The present case is not just of religious freedom but also the individual’s right to education, and her life and liberty. The State must ensure that an individual can profess and practice her religion without hampering her other rights. Anything contrary to that damages the concept of secularism. A blanket ban on headscarf and hijab due to some prescribed dress forms in school is arbitrary.[5]
There are certain feminist views regarding the practice of veiling as paternalistic and hence challenging the essentiality of the said practice. Concerning the constitutional rights of a person, it is to the citizens to put faith in religious beliefs and practices mentioned as essential in their religious scriptures as they deem fit. The issue of rationality cannot be invoked vis-à-vis religious practices as what can be deemed as religious by some is mere stupidity or hypothesis to others. The issue that needs to be dealt with here is the interference with the fundamental right along with the defined nature of secularism we are constitutionally supposed to abide by.
Author(s) Name: Runjhun Sharma (Dr. Ram Manohar Lohiya National Law University, Lucknow)
[1] Constitution of India, 1950, art. 25
[2] Nadha Raheem v CBSE and Ors. Writ Petition (Civil) No. 21696 of 2015, Kerala High Court
[3] Ratilal Panachand Gandhi v State of Bombay (1954) AIR 388
[4] Amnah Bint Basheer and Ors. v CBSE and Ors. Writ Petition (Civil) No. 6813 of 2016, Kerala High Court
[5]Prabhat Singh Rana, ‘Hijab Ban & Indian Concept Of Positive Secularism’(Live Law, 10 February 2022) <https://www.livelaw.in/columns/hijab-ban-indian-concept-of-positive-secularism-191613> accessed 4 March 2022
