In my hometown of Udupi, Karnataka, many Muslim girl students have been denied admission in their college. The administration objected to covering his head with the hijab. The girls call for the preservation of the Indian Constitution, whose preacher Dr BR Ambedkar once wrote, “The world owes much to the rebels who dare to argue before the Pontiff and insist that he is not infallible”. .
Udupi has a proud tradition of rebels who have challenged established norms that have not stood the test of logic. In the 16th century, the priests of the Krishna temple in Udupi barred a lower caste devotee Kanakadas from entering it. He refused to leave and began to compose and sing Kirtan Outside the courtyard, waiting for the darshan of the deity. Even after several days the priest did not agree but a miracle intervened. The idol of the deity which was then facing east, miraculously turned 180 degrees west, and then broke down a back wall to create a window through which Kanakadas could have his darshan. Even today, all the devotees have the first glimpse of the Lord from the window of Kanakdas.
a focal point
Thus, it was only historically appropriate that one of the first great religious matters to be interpreted by the new Supreme Court under the new constitution came from Udupi. Commissioner, Hindu Religious Endowments, Madras v. Sri Laxmindra Teertha Swamy, in the case Sri Shirur Math, or Shirur Muto, 1954, the Court ruled, “… what constitutes an essential part of a religion is to be formed primarily in the context of the principles of that religion.” Anytime after that, I decide Shirur Muto Religious freedom has been the focus of constitutional discussion. The “essential religious practices” trial gave conservatives’ assurances that the Court would be sympathetic to their respective religious beliefs. It favored state-sponsored reform, leaving an agency of the state – the judiciary – with the power to determine and (perhaps, change) religious practice and belief.
‘religious practice’
Since it was first propounded, the “essential religious practice” test has been problematic. How does the Court determine what is an ‘essential practice’? Should it ‘trust religious leaders’? Should it ‘seeking proof’? Should judges ‘follow up on these questions based on their own research’? Condoling the Sabarimala case, Justice DY Chandrachud said, “…the compulsion has nevertheless led the court to play a religious role. The inquiry has gone beyond deciding what is essentially religious.” And what is an essential religious practice. It is no easy task to play such a role when the court is asked to decide whether a practice is an essential part of a religious belief. is mixed with confusing complexity. Separating the grain from the husk involves a complex judicial work. The Court’s decisions have attempted to bring about impartiality by recognizing that the Court has to make decisions based on the principles of religion. But even this is not a consistent criterion.”
In the case of the hijab, there is no doubt that an observant Muslim woman can insist that the following verses of the Qur’an order her to keep her head covered. Chapter 33, verse 59 says “O Prophet! Command your wives, your daughters, and the wives of the true believers to put on their outer garments on their persons (when abroad): it is most convenient, that they should be honored can be done and they cannot be harassed.” Chapter 24, verse 31 is more explicit in commanding, “And tell the believing women to lower their eyes…; that they should not display their beauty and ornaments except what is (usually) visible.” that they should make their own glory… and their beauty, their husband’s, their father’s, their husband’s father’s, their sons’, their husband’s sons, their brothers’ or their brothers’ sons, or their sisters’ sons, or their own Don’t perform. Woman…”
a possible outcome
Uniform questions never bothered me at my five-year college in Udupi in the early 1980s. There was no need for uniform. Later administrators, in the 1990s, may have decided on uniforms to prevent competition among fashion-conscious teenagers. Today, there is no uniform code that is mandatory across the state. Different colleges decree uniforms, but not necessarily the manner of wearing them. An unfortunate side effect of the present controversy could be a state administrative order ordering uniforms for all college students across the state of Karnataka. I think this would be a happy response to an administration that prioritizes uniformity over diversity.
In the absence of a statutory uniform code, a court may well ask whether the head covering mandated by some religions, when worn in addition to the uniform, violates any legal principle. Will the same standards that remove the female hijab apply to a turban worn by a male Sikh student? Can government colleges deny education to students who violate the Uniform Code? Is hijab or full covering in any way a violation of the teaching process? Can a government committed to women’s education deny education to those it considers to be improperly dressed? Should priority be given to enforcement of dress code, education should be imparted to those who want it? These and other similar questions will probably soon attract the attention of a Constitutional Court. That court may do well to take note of Justice RF Nariman’s observation in the Sabarimala review, which says, “…Finally, in an attempt with the fate of India, we opted for the rule of law as stipulated by the Constitution of India.” Let every person remember that the “Holy Scripture” is the Constitution of India,…”
right to compete
The explanatory answer to the hijab line from the “Holy Book” may lie in another case in Udupi district. three years later Shirur MathIn 1957, the Supreme Court, in Sri Venkataraman Devaru v State of Mysore, was to examine whether preventing a person from entering a temple for worship was a matter of religion in accordance with Hindu ceremonial law. The Court observed “…that the right of a sect to exclude members of the public wholly from worshiping in a temple, although included in Art. 26(b), must be subject to the overriding authority declared by Art. 25(2)(b) to enter a temple for worship in favor of the public. But where the right claimed is not one of general and complete exclusion of the public from worship in the temple at all times, but of certain religious services is of exclusion from them, being limited to members of the denomination by the rules of the foundation, then the question is not whether Art. 25(2)(b) abrogates that right so as to abolish it, But is it possible—therefore to regulate the rights of persons protected by Art. 25(2)(b) to give effect to both rights” Venkataraman Devaru points to the Court’s attempt to harmonize competing rights in such a way that both were effected. In the hijab case, the courts would be asked to defend an essential religious practice, which is consistent with the imparting of education in an orderly manner.
Predicting the final outcome of an upcoming legal battle is not the scope of this article. However, protesting girls can win hearts with another Kanakadas-like episode from the late 1970s. John Higgins, an American scholar of music, was so proficient in Carnatic music that he came to be called Higgins Bhagavathar. When he visited the Udupi Shri Krishna Temple, he was denied entry because of his fair skin. He stood at the door and sang the Vyasatirtha composition in pure Kannada, ‘Krishna Ni Shure Baro’, He was immediately allowed entry, possibly to prevent another intervention from the deity. The moral I learn from this episode is that unthinking promoters of any kind of dogma will eventually succumb to a cohesive belief in a “holy book”.
Sanjay Hegde is a senior advocate nominated by the Supreme Court of India
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