New Delhi: A recent court ruling banning the head covering of Muslim students in schools has drawn criticism from constitutional scholars and rights activists, amid concerns of judicial overreach in relation to religious freedom in an officially secular India. Is.
Although the ban has been imposed only in the southern state of Karnataka, critics worry that it could be used as the basis for wider restrictions on Islamic expression in a country already ruled by Prime Minister Narendra Modi’s Bharatiya Janata Party. . Watching the growth of Hindu nationalism under
“With this decision, the rules you are making can restrict religious freedom of every religion,” said Faizan Mustafa, a scholar and vice chancellor of freedom of religion at Nalsar University of Law in Hyderabad. “Courts should not decide what is essential for any religion. By doing so, you are giving privilege to some practices over others.”
Proponents of the decision say it is an affirmation of the authority of schools to set dress codes and regulate the conduct of students, and that it takes precedence over any religious practice.
“Institutional discipline must prevail over individual choices. Otherwise, it will result in anarchy,” said Karnataka Advocate General Prabhulinga Navadgi, who argued the state’s case in court.
Ahead of the verdict, over 700 signatories, including senior lawyers and rights advocates, opposed the ban in an open letter to the court’s chief justice, saying, “It is to impose complete uniformity against the autonomy, privacy and dignity of Muslim women. Unconstitutional.” ” ,
The controversy began in January when a government school in Karnataka’s Udupi city barred students wearing hijab from entering classes. Employees said the Muslim headscarf violated the campus dress code, and should be strictly enforced.
Muslims protested and Hindus protested. Soon more schools imposed their own restrictions, forcing the Karnataka government to issue a statewide ban.
A group of Muslim students filed the suit on the ground that their fundamental rights to education and religion were being violated.
But a three-judge panel, which also included a female Muslim judge, ruled last month that the Quran does not establish the hijab as a required Islamic practice and could therefore be banned in classrooms. The court also said that the state government has the power to lay down similar guidelines for students in the form of “reasonable restrictions on fundamental rights”.
“What has not been made religiously obligatory cannot be made the quintessential aspect of religion through public agitations or passionate arguments in the courts,” the panel wrote.
The verdict rests on what is known as a compulsory test—basically, whether a religious practice is mandatory under that belief. There is no such distinction in the Constitution of India, but courts have used it since the 1950s to settle disputes of religion.
In 2016, the High Court in the southern state of Kerala ruled that covering the head was a religious duty for Muslims and therefore required for Islam under trial; Two years later, India’s Supreme Court again used the test to overturn historical restrictions on Hindu women of certain ages entering a temple in the same state, saying it was not a “necessary religious practice”. .
Critics say the mandatory trial gives courts broad authority over religious matters where they have little expertise and where the clergy would be more appropriate arbiters of the faith.
The Supreme Court of India itself is skeptical about the trial. In 2019 it set up a nine-judge panel to re-evaluate its validity in relation to trust matters, calling it “doubtful”; The case is still pending.
The trial in Karnataka cited a 2016 Kerala decision, but this time the judges came to the opposite conclusion – baffling some observers.
“That’s why judges don’t make such great interpreters of religious texts,” said Anoop Surendranath, professor of constitutional law at the National Law University in Delhi.
Surendranath said the most sensible approach would be for the court to consider what Muslim women believe to be true from a belief perspective: “If wearing the hijab is a true belief of Muslim girls, why… . believe at all? ,
From ruling Union Minority Affairs Minister Mukhtar Abbas Naqvi to Karnataka Education Minister BC Nagesh, Bharatiya Janata Party officials have welcomed the decision.
Bombay High Court lawyer Satya Mulay said it was entirely appropriate for the judiciary to impose certain limits on religious freedom if they violate the dress code, and the decision would “help maintain order and uniformity in educational institutions.”
“The question is, is it the Constitution, or does religion take precedence?” Mule said. “And the court’s decision is the correct response by upholding the power of the state to impose restrictions on certain freedoms guaranteed under the Constitution.”
Surendranath said the decision was flawed as it failed to implement three “reasonable restrictions” under the Constitution that allow the state to interfere with freedom of religion – for reasons of public order, morality or health.
Surendranath said, “The court did not mention these restrictions, even though none of them are justified to ban the hijab in schools.” “Rather, it emphasized uniformity in schools, which is in contrast to the diversity and multiculturalism of our Constitution.”
Karnataka’s decision has been appealed to the Supreme Court of India. The plaintiff requested an expedited hearing on the grounds that the continued ban on the hijab threatens to lose the entire academic year of Muslim students. However, the court refused to hear the matter soon.
Muslims make up just 14 percent of India’s 1.4 billion people, but still constitute the world’s second largest Muslim population for a nation. The hijab has historically not been banned or banned in public areas, and women wearing head scarves – like other outward manifestations of religion – are common throughout the country.
The controversy has deepened sectarian blame lines, and many Muslims worry that the hijab ban could encourage Hindu nationalists and pave the way for more restrictions targeting Islam.
“What if the ban becomes national?” Ayesha Hajjira Almas, one of the women challenging the ban in the courts of Karnataka. “Millions of Muslim women will suffer.”
Mustafa agreed.
“Hijab is freedom for many girls. It is the kind of deal that girls make to go out with conservative families and participate in public life,” he said. “The court completely ignored this perspective. “