The question in the Karnataka hijab row is whether the students’ decision to wear the dress to college emanates from their “genuine and conscientious religious faith”.
A 36-year-old judgment of the Supreme Court may throw some light on the issue. In 1986, the Supreme Court discussed how the right to religious freedom (Article 25) protects actions or omissions by children in educational institutions based on their “honest belief and conviction”.
The apex court in its landmark judgment of 1986 in Bijoe Emmanuel and Others versus State of Kerala dealt with the expulsion of three children belonging to a sect of Christianity, called Jehovah’s Witnesses, by the headmistress of their school for not singing the National Anthem during the morning assembly.
The children challenged the school’s action as violative of their rights under Articles 19(1)(a) (right to freedom of speech and expression) and Article 25 (freedom of religion).
Verdict favours children
The Supreme Court ruled in favour of the children, holding that their expulsion for refusing to sing the National Anthem “because of their conscientiously held religious faith” was a violation of their right to freedom of religion and conscience.
The court, in Bijoe Emmanuel , also laid down a test whenever a complaint is made that there has been a violation of the fundamental right to freedom of conscience and to profess, practise and propagate religion.
This test is whether the action accused of restricting freedom of religion was made to protect public order, morality and health; or whether the restraint on the right was brought to protect another fundamental right; or whether the act was “authorised by a law made to regulate or restrict any economic, financial political or secular activity which may be associated with religious practice or to provide for social welfare and reform”.
Adding fuel to the hijab controversy is a February 5 order of the Karnataka Education Department which has directed educational institutions in the State to follow the dress code decided by the college’s development board or, in case of no such dress code, “students can wear dress which will not affect equality, integrity and law and order”.
The question is whether the State can interfere if a student wears a hijab to college without causing any harm to others, and under the firm belief that it is a part of her religious observance and practice. The State has also to consider whether a woman’s dignity and the right to access to education should suffer because her dress code cannot be accommodated by the authorities of an educational institution.
‘Hallmark of pluralism’
In its 1994 judgment in the S.R Bommai case of 1994, the Supreme Court observed that “religious freedom is the hallmark of pluralism and inclusiveness. It is meant to advance social harmony and diversity”.
In the Constituent Assembly debates, Prime Minister Jawaharlal Nehru declared that “secularism was an ideal to be achieved and that establishment of a Secular State was an act of faith, an act of faith above all for the majority community because they will have to show that they can behave towards others in a generous, fair and just way”.