Split over hijab

A two-judge bench of the Supreme Court has been unable to resolve the conflict over girl students’ freedom to wear hijab.

One judge, rejecting the idea that hijab could be worn in addition to the uniform, has held that permitting one community to wear religious symbols to class will be the antithesis of secularism.
The second judge has ruled that asking to remove the head scarf at an institution’s gates is an invasion of their privacy and dignity.

Article 25:
- Article 25 guarantees the freedom of conscience, the freedom to profess, practice, and propagate religion to all citizens.
Article 26:
- This Article provides that every religious denomination has the following rights, subject to morality, health, and public order.
  - The right to form and maintain institutions for religious and charitable intents.
  - The right to manage its own affairs in the matter of religion.
  - The right to acquire immovable and movable property.
  - The right to administer such property according to the law.
Article 27:
- No person may be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.
Article 28:
- Freedom regarding attendance at religious instruction or religious worship in certain educational institutions.

The essential religious practice (ERP) test is a doctrine evolved by the supreme court (SC) to protect only such religious practices under fundamental rights, which are essential and integral to religion.
The doctrine of “essentiality” was invented by the SC in the Shirur Mutt case in 1954.

Not an essential religious practice:
- Hijab is not an essential religious practice and the freedom of religion can be subjected to reasonable restrictions under constitutional provisions for maintaining institutional discipline.
To ensure secular education:
- Educational institutions can impose dress codes/uniforms prohibiting religious dress from ensuring secular education.
Homogeneity:
- The spirit behind a dress code ensures homogeneity in a classroom and obliterates the visible class or caste divide.

Constitutional Right:
- Wearing of hijab is their fundamental right under the right to freedom of religion under Article 25, and wearing a hijab is an expression protected under Article 19 of the Constitution, which guarantees the right to freedom of speech and expression.
Irrational restrictions:
- Government has the right to restrict fundamental rights to protect the sovereignty and integrity of India, friendly relations with foreign states, public order, decency or morality or in relation to contempt of courts.
The High Court verdicts:
- The Kerala High Court and the Madras High Court came to a conclusion that purdah or burkha may not be an essential religious practice but a hijab/headscarf is.
To protect diversity:
- India is a land of diversity, and the diversity in the classroom must reflect this social reality, as this helps students to know about different diverse groups and they learn to respect diversity.
- If the classroom becomes homogeneous then students could feel uncomfortable in a Heterogeneous Indian Society.

Content Source: The Hindu