Open Access Research Article
Freedom of Religion and Attire in Educational Institutes (By-Dr.S.Krishnan & Mr. Sahil Hussain)
Published Paper
Article Details
Freedom of
Religion and Attire in Educational Institutes
Authored By
|
1.
Dr.S.Krishnan
Associate
Professor
Seedling School of Law and Governance
Jaipur National University, Jaipur
|
2.
Mr. Sahil Hussain
4th
Sem Student of LLB (3)
Seedling School of Law and Governance
Jaipur National University, Jaipur
|
Abstract
Islam places much emphasis on modesty and chastity. Islam
makes it compulsory for all Muslims to dress with great modesty. The modest
dressing for females is referred to as the hijab. The exact ambit of the hijab
is subject of controversies. Over the years, in compliance with this divine
injunction, Muslim women have adopted all or one or more combination of these:
loose outer garment (jilbab), headscarves (khimar), face veil (niqab), and
stockings to cover their feet. Any pious Muslim woman would feel strongly, the
imperative to adopt these. Teeming numbers of students in tertiary institutions
in India are now turning to the hijab. However, some institutions have
attempted to subvert the hijab by introducing dress codes for their students.
These have caused frictions in many institutions. The affected students argue
inter-alia that the dress codes violate their constitutionally guaranteed
fundamental right to practice and observe the tenets of their religion and
their right to freedom from discrimination on grounds of religion.This paper
looks that the frictions generated by the clash between religious imperatives
and dress codes in tertiary institutions (universities, colleges of education,
secondary schools, and other institutes) in the context of religious rights in
Nigeria, and the attitude of the courts thereto. The paper also examines the
position under international human rights law and in other countries across the
world.
Keywords: Religious symbols; religious freedom; secularism;
school policy; human rights; religious diversity.
Introduction
Freedom of religion or belief and school
education is a multifaceted issue that entails significant opportunities and
far-reaching challenges. The school is the most important formal institution
for the realization of the right to education. It provides a place of learning,
social development and social encounter. At the same time, the school is also a
place in which authority is exercised and some individuals, including members
of religious or belief minorities, may find themselves in situations of
vulnerability. Given this ambivalence of the school environment, safeguards to
protect the individual‘s right to freedom of religion or belief are necessary.[1]
Schools can offer unique possibilities for constructive dialogue among all
members of society, and human rights education in particular can contribute to
the elimination of negative stereotypes that often adversely affect members of
religious minorities. However, freedom of religion or belief and school
education has also sparked controversy in many societies, particularly with
regard to contentious issues such as religious symbols in the school context
and religious instruction.[2]
The role of religious symbols, including
wearing religious garments in school and religious education, has been, and
continues to be, a matter of controversy in a number of countries.
Pupils/students or teachers/professors observing religious dress code,
including Islamic headscarves and Sikh turbans, have in some countries been
expelled from schools, denied access to higher education, suspended from their
jobs or had other rights restricted. Parents and (or) children seeking to
benefit from the exemptions from religious classes are forced to reveal their
belief or the fact that they are nonbelievers that raises concerns about the
proper implementation of the Article 9 ECHR and Article 2 of Protocol No. 1 of
the European Convention on Human rights (hereinafter ECHR or the Convention).
So far, the European Court of Human Rights (hereinafter ECtHR or the Court) has
dealt with diverse forms of religious symbols. The relevance of the issue is
demonstrated by the new applications raising new issues concerning the
display/wearing of religious symbols. And, as the President of the Strasbourg
Court Sir Nicolas Bratza indicated: ‘this may be far from the Court’s last word
on the question of the wearing of religious dress or symbols.’[3]
EVER SINCE the hijab controversy
broke out recently, popular debates across platforms and portals both within
Bharat and abroad have generalised the issue as one that relates to
discrimination against a particular religious minority, instead of examining
the specifics of the row in Karnataka. The issue at hand is nowhere close to or
even remotely comparable to France’s hijab ban, so let’s
start with what educational institutions in Karnataka are permitted by law
before we look into what transpired on the ground.
Controversy
has raged in the corridors of educational institutions in Karnataka on the
matter of uniforms. In the beginning of 2022, the Karnataka government
issued an order to government educational institutions,
insisting that the administration of each educational institution follow the
policy of prescribing a singular uniform policy for their institutions. The
order noted that clothes which disturbed public order, equality and integrity
within the schools would be banned. The order noted that the government had
noticed a trend of religious attire being worn instead of merely the prescribed
uniform and argued that this disturbed equality and public order within
schools. The order was used by administrations of educational institutions in
colleges in Karnataka to bar Muslim women wearing the Hijab from entering the
educational institute. In some cases, though the women were allowed to enter
the institute, they were segregated and attended classes separately from other students.
Prima facie, the matter appears to be an issue
primarily concerning the freedom to religion enshrined under Article 25. It may
be argued that Hijabs are essential to the religion of Islam, and therefore by
debarring Muslim women from educational institutions for wearing the Hijab,
their freedom to express their religion is being infringed upon by the State.
While intuitively an argument along the lines of freedom of religion is
attractive – and indeed, it is precisely the line of argument counsel for the
petitioning Muslim women argued in the Karnataka High Court, it presents
several issues. This piece shall argue that rather than a freedom of
religion-based judgement, the High Court ought to base its judgment on the
grounds of Freedom of Expression.
The
legislation that governs educational institutions in Karnataka is the Karnataka
Education Act of 1983 which has been in force since January 20th, 1995. Under
Section 133, the state government may issue any direction to any educational
institution to achieve the purpose of the Act. Further, as is the case with
most legislation, the 1983 Act also contains a specific provision, namely
Section 145, which empowers the state government to frame rules. Under this
provision, the Karnataka Educational Institutions (Classification, Regulation
and Prescription of Curricula Etc) Rules, 1995 were notified. Here is Rule 11
which applies to the issue at hand (emphases added):
Provision of Uniform, Clothing, Text Books etc.,
(1) Every recognised educational institution may specify its own set
of Uniform. Such uniform once specified shall not be changed within the period
of next five years.
(2) When an educational institution
intends to change the uniform as specified in sub-rule (1) above, it shall
issue notice to parents in this regard at least one year in advance.
(3)
Purchase of uniform clothing and text books from the school or from a shop
etc., suggested by school authorities and stitching of uniform clothing with
the tailors suggested by the school authorities, shall be at the option of the
student or his parent. The school authorities shall make no compulsion in this
regard.”
Section
2(30) defines a “recognised educational institution” as an educational
institution recognised or deemed to be recognised under the Act. When Section
2(30) is read along with Rule 11, this much is clear that a recognised
educational institution in Karnataka has the power to prescribe its own
uniform, which also includes the power to identify what does not constitute
uniform. What does this translate to?
First,
it is no one’s case thus far that this power is not available to the
institutions in Udupi which are at the centre of the controversy. Second, on
the face of it, there appears to be no fetter on the power of these
institutions to lay down a dress code so long as it is reasonable. Third, no
one has been able to demonstrate that these institutions have laid down any
rule, much less enforced one, which targets any one community.
Fourth, the power vested in recognised
educational institutions under Rule 11 has not been called into question on
grounds of unconstitutionality for vesting excessive power in schools. This is
not to say that the rule cannot be challenged now; however, the point being
made is that, legally, until the rule exists and is applied across the board to
students of all faiths, it makes no sense whatsoever to argue that since the
wearing of the hijab does not affect anyone, it should be
permitted. After all, this undermines the purpose of a “uniform” whose
underlying intent is to ensure that religious differences do not stand out in a
classroom to the extent possible. Of course, it is open to an institution to
permit visible religious symbols over and above the uniform, but it equally
reserves the right to proscribe it.
On the limited power of Courts to interfere
with the internal administration of educational institutions, here’s an
observation by the Madras High Court in Sir M. Venkata Subba Rao vs
Sir M. Venkata Subba Rao (2004) wherein a dress code laid down for
teachers by a school was the subject of challenge (emphases added):
On a combined reading of the above
provisions, it is seen that the Board of Matriculation Schools has the overall
control as to the maintenance of the school and also to issue directions from
time to time to the teachers, and on such directions, the teachers shall
confirm to the same. The power of the management of the school to issue the
impugned circular prescribing dress code shall be traceable to clause 6 of
Annexure VIII (Agreement). In that view of the matter, we do not find
any merit in the contention of the learned counsel for appellant that the
respondent-school management has no power to issue circulars prescribing the
dress code.
Prior to the issuance of the said notification by the state
government there were instances where students wore saffron scarfs, protesting
against permission to Muslim women/girl students to wear hijab inside
class rooms. The issue escalated further, leading to protests at several places
in Karnataka. In view thereof, there was an apprehension that public order
issues may arise. In this backdrop, the notification in question was issued.
The said notification is currently a subject matter of challenge
before the High Court of Karnataka. The challenge to the said notification is
on both procedural and substantive grounds. The substantive legal grounds for
challenge to the said notification and the underlying socio-political
implications of the said notification are required to be addressed.
Insofar as the substantive challenge to the notification is
concerned, the arguments advanced by the petitioners before the Karnataka High
Court can be found here. It is contended that the right to wear hijab is
an essential religious practice which cannot be restricted by the State and
that wearing of hijab is a facet of freedom of speech and
expression under Article 19(1)(a) of the Constitution of India.
A reference was made to the verses of the Quran which
impose an obligation on women to cover their bodies. It was also contended that
exposure of the body by females was considered to be “haram” in Islam.
References were also made to the Hadith which prescribes punishments for not
covering the head.
Undoubtedly, the petitions have given the court the opportunity to
delve deep into controversial questions of law relating to religious freedom
and the interplay between the right to profess, practice and propagate religion
and other fundamental rights including the Right to Equality under Article 14,
as also the legitimate interests of the State to protect and preserve the social
fabric and determine and enforce adherence to moral standards or principles in
public institutions or educational institutions.
The wearing of burqa/nikab/hijab, etc, by Muslim women
has been a subject matter of social and political debate for several years now.
The conservative Islamists have always advocated burqa and nikab mandates.
On the other hand, reformist voices within Islam and outside Islam have
propagated ideas of liberation of Muslim women from practices which further
gender stereotypes.
Amongst the Islamic scholars as well, there are differences of
opinion on this issue. Interestingly, Dr BR Ambedkar, in his book Pakistan
and the Partition of India, expressed strong views on this issue. It is
pertinent to note that Dr Ambedkar extensively addressed the exclusionary
effects of the burqa system and advocated social reform and
liberation from such practices.
On quite a few occasions, the controversy surrounding hijab/nikab has
been taken to the constitutional courts. In the case of Amnah Bint Basheer
v. Central Board of Secondary Education, the Kerala High Court held that
wearing a headscarf/hijab/burqa constitutes an essential practice
in Islam. Despite this observation, a CBSE directive imposing a dress code for
an examination was not quashed. Interestingly, the court noted that even if a
practice is essential to a religion and protected by Article 25, restrictions
on the grounds of public order, morality, and health can be imposed by the
State. It then made an attempt to balance the right of the individual with the
right of the institution.
In another case, (Fathima Tasneem v State of Kerala) the
High Court of Kerala held that the collective rights of an institution would be
given primacy over the individual rights of the petitioner. The case involved
two girls, aged 12 and 8, represented by their father, who wanted his daughters
to wear the headscarf as well as a full-sleeved shirt. The school that refused
to allow the headscarf was owned and managed by the Congregation of the
Carmelites of Mary Immaculate (CMI) under CMI St Joseph Province.
The court ruled in favour of the school and held that the
petitioners cannot seek the imposition of their right as against the larger
right of the institution. The court held that it was for the institution to
decide whether the petitioners could be permitted to attend the classes with
the headscarf and full sleeve shirt. It was further also held that it was
purely within the domain of the institution to decide on the dress code and the
court cannot even direct the institution to consider such requests.
The legal question that is required to be addressed is as to whether
the State or any educational institution can legitimately restrict female
students professing Islam from wearing a hijab/niqab or any
other attire which is distinct from the prescribed uniform of such educational
institution. It is noteworthy that in several foreign jurisdictions as well,
restrictions on such attire have been imposed and even upheld by the
constitutional courts.
For example, the European Court on Human Rights had upheld a ban on
wearing a full face veil in any public place in France. The said ban was
challenged by a woman professing Islam on the ground that it violated her
privacy and religious freedom. The ban was defended by the French government on
grounds of public safety and on grounds of gender equality, human dignity and
the minimum requirements of life in society. The court upheld the ban on the
ground that the only legitimate aim of the ban was to guarantee minimum requirements
of “living together” in society.
In Germany, compulsory mixed swimming lessons in schools were
challenged by parents of young Muslim girls on several occasions before the
courts. The courts time and again upheld such stipulations of mixed swimming
lessons for girls and boys by holding that this was a social norm in Germany
and a way of life. Similar issues relating to mixed swimming lessons were also
brought before the Federal Supreme Court of Switzerland which also took a
similar view upholding mixed swimming lessons.
In the Indian context, arguments have been advanced that our country
follows positive secularism, unlike several European countries which follow
negative secularism. It is also argued that the right to privacy is recognised
by the Supreme Court and the right to wear clothes of one’s choice is also part
and parcel of the said right. However, to argue that such a right extends to
wearing clothes of one’s choice even in educational institutions would amount
to stretching the right too far.
Even if it is possible to so stretch the said right, the State would
still be well within its rights to impose reasonable restrictions to achieve
certain legitimate interests and the courts would normally have to show
deference to the decisions of the State. Any interpretation to the contrary may
also give rise to future claims of the right to wear hijab by
women from uniformed services such as police force and such other services.
The evolving constitutional jurisprudence in India reveals a trend
where the courts have frowned upon gender stereotypes and practices derogatory
to women. It has been held that religious freedoms are subject to
constitutional morality. It is evident that the religious freedom under Article
25 can be legitimately restricted by the State on the ground of public order
and morality.
The said constitutional morality, according to
the Supreme Court, is governed by principles of justice, liberty, equality,
fraternity, and secularism. In the Sabrimala case, the court has held that the
courts must deny protection to practices which detract from the constitutional
vision of justice, liberty, equality irrespective of the source from which they
claim legitimacy, even if it be a religious text.
In respect of the hijab mandates,
it is clear that the said mandates contained in the relevant religious texts
are a clear manifestation of gender stereotypes and are contrary to the
principles of liberty and human dignity. Undoubtedly, religion contains
prescriptions concerning every aspect of the life of man. However, while
examining the questions concerning rights of the state to impose restrictions
on religious freedoms, one must be mindful of the distinctions between matters which
are strictly falling within the purview of religion and matters which are in
the nature of social injunctions.
The hijab mandate in Islam is
undoubtedly in the nature of social injunction and does not constitute any
religious/ritualistic/spiritual teaching. The said mandates treat women as
chattel and as such, can claim no constitutional or legal sanction whatsoever.
Though the right to choose an attire, particularly when such choice of attire
is based on religious affiliations and sentiments, is an important right, such
a right cannot be extended to wearing such attire of choice even in the
educational institutions.
Any restrictions in this regard by the state
would be legitimate and would have to be upheld as reasonable. Needless to say
that even if it be said that such a right could be covered by Article 25 or
that it is an essential religious practice, the State would still be well
within its rights to impose reasonable restrictions in the interests of public
order, morality, health and the other fundamental rights guaranteed by the
Indian Constitution.
Article 30 of the Constitution of India
guarantees to all minorities the right to establish and administer educational
institutions of their choice. The said right is available to both religious and
linguistic minorities and is aimed at ensuring that such minorities are able to
preserve their culture. Any dress code prescribed in such institutions will
have to be adhered to. On the other hand, the right to wear hijab cannot
be claimed in institutions which are of an inherently secular character.
Interestingly, the Muslim Education Society had recently banned wearing
of burqa in all its schools in colleges. The MES runs more
than 150 educational institutions.
Clothes
As A Form Of Symbolic Speech
There
is a long history of small amendments to uniforms being used to send a
political message. School children in the United States wore black armbands in
protest of the Vietnam War in the 1960s and 1970s. In India, students have worn black
badges in Manipur, as a sign of solidarity for public
demands for strict punishments for certain murderers. University students wore
black armbands to protest lack
of pay for Physiotherapists, violence in Jawaharlal
Nehru University in 2020 etc. These are clear examples
where political views were expressed through a piece of clothing such as badges
or armbands. Students have used such simple, yet effective and symbolic means
of protests for decades.
School children in
Des Moines were punished for black armbands as it was argued the armbands
violated the school uniform. The case reached the Supreme Court of the United
States (SCOTUS) wherein the court laid down its famous judgment of Tinker v Des Moines Independent School
District that the black armbands were constitutionally
protected speech. The majority observed that school students had not
surrendered any of their fundamental rights by deciding to enroll in a
school, observing that:
“First Amendment rights, applied in light of the special
characteristics of the school environment, are available to teachers and
students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate.”
The
court noted that due to the circumstances surrounding the armbands, that is,
the students were wearing it to specifically protest the Vietnam War and were
therefore making a political statement, such symbolic conduct would amount to
speech. The court noted:
“It was closely akin to ‘pure speech’ which, we have repeatedly
held, is entitled to comprehensive protection under the First Amendment.”
As
it was an issue of free speech, the court noted that the only reason for which
restrictions may be placed on symbolic speech/conduct amounting to speech is
when such conduct caused an
immediate
disturbance and disturbed the peace and order of the school. The majority noted
that black armbands by themselves could not constitute a disturbance to any
form of public order and therefore the punishments faced by students were
unconstitutional as it amounted to an infringement on their right to free
speech. The majority concluded its opinion, observing:
“These petitioners merely went about their ordained rounds in
school. Their deviation consisted only in wearing on their sleeve a band of
black cloth, not more than two inches wide. They wore it to exhibit their
disapproval of the Vietnam hostilities and their advocacy of a truce, to make
their views known, and, by their example, to influence others
to adopt them. They neither interrupted school activities nor sought to intrude
in the school affairs or the lives of others. They caused discussion outside of
the classrooms, but no interference with work and no disorder. In the
circumstances, our Constitution does not permit officials of the State to deny
their form of expression.”
Tinker represents the court’s acknowledgement
that deviations from school uniform can express a message, or a viewpoint and
those deviations may not be punished by school authorities unless there was a
countervailing interest in maintaining order which was threatened by the
deviation.
The
idea that certain non-verbal conduct is loaded with meaning due to the nature
of conduct and the context the conduct occurs in that the conduct is akin to
speech has been accepted in Indian Constitutional Jurisprudence as well.
In NALSA v Union of India,
whilst dealing with several constitutional issues regarding the transgender
community, the court makes an important observation that people express their
gender-identity through their mannerisms and clothes, and such expression is a
fundamental right guaranteed under Article 19(1)(a) of the constitution (para 62). The court refers to the US cases City of Chicago v. Wilson
et al and Doe v. Yunits et al as
examples wherein courts stated that expression of gender-identity through
choice of clothes is a key aspect of a person’s fundamental right to expression
and autonomy. Having cited these cases the court concludes that:
“Principles referred to above clearly indicate that the freedom of
expression guaranteed under Article 19(1)(a) includes the freedom to express one’s chosen gender identity through
varied ways and means by way of expression, speech, mannerism, clothing etc”.
Through
the NALSA judgment, the court broadened the scope of
Article 19(1)(a) to include non-verbal speech as well. Much like in Tinker where, in the given context, the black
armbands represented anti-Vietnam fervour in the students, in the societal
context, the choices a person made regarding the clothes they wore could
communicate an important part of their gender-identity to society at large.
Thus, the meaning of the non-verbal speech did not have to be a purely
political one (that is relating to a governmental policy), it would suffice if
the impugned conduct/action communicated an aspect of the person’s identity to
the audience.
This
idea was further articulated in the judgment of Navtej Johar v Union of
India dealing with Section 377 of the Indian Penal
Code which criminalised homosexual sexual acts. Whilst striking it down on the
anvil of privacy, autonomy and discrimination, Chief Justice Misra (along with
Justice Khanwilkar) additionally struck down the section on the ground of
violation of free speech (para 247). The court observed that the section caused
many in the queer community to live their lives in secret, out of fear of being
accosted by the police. This chilling effect amounted to a violation of the
freedom of expression. Section 377 criminalised sexual acts, not any form of
verbal speech of any form. However, due to the chilling effect on the queer
identity caused by the legislation, it violated free speech. Thus, due to the
impact of the provision causing a person to be unable to communicate an aspect
of their identity to society, a freedom of expression violation had occurred.
Justice Indu Malhotra in her concurring opinion cited the NALSA judgment that individuals have the right to
express their gender identity in the manner they choose through mannerisms,
clothes etc and extends this principle to sexual orientation as well, thus
striking down the section on the anvil of free speech (para 17.1-17.2).
Further
from home, in case similar to NALSA, the
Malaysian Court of Appeal in Muhamad Juzaili bin Mohd
Khamis v. State Government of Negeri Sembilan struck
down legislation criminalising the act of cross-dressing on the grounds of it
violating free speech, whilst citing Tinker and NALSA. The court held that cross-dressing involved a
form of symbolic speech as the conduct communicated a part of the person’s
identity to the audience. Therefore, as the conduct did not cause a public
order problem, the state had no justification for criminalising it (Page 23).
Bijoe Emmanuel v Nalsa
In
the famous Bijoe Emmanuel case,
students who were Jehovah’s Witnesses were punished and expelled from a school
due to their refusal to sing the national anthem. The Supreme Court held that
compelling the students to sing the anthem would infringe on their fundamental
rights and therefore would be a violation of the Constitution. The court’s judgment
revolved around the fact that the opposition to the singing was based in
religion. Thus, any politically motivated reason for not wishing to sing the
national anthem could perhaps not use Bijoe Emmanuel for
precedential value in making their case. If a situation like Colin Kapernick
(NFL athlete who kneeled during the national anthem to protest police brutality
in the United States) occurred in India, the Bijoe Emmanuel judgment
might not be of great assistance.
However,
was the nature of the source of the objection relevant in the case? Why should
a decision motivated by politics to not be compelled to participate in the singing
of a song, be given less protection than a decision to not sing grounded in
religion? In both instances a person is being compelled to participate in an
activity at risk of sanction despite their personal discomfort, abhorrence and
the fact that the activity goes against their beliefs. The important fact ought
not to be the nature of the source of objection but rather the fact the
individual is being compelled to
participate in the activity and take part in a form of expression they object
to. Sincerity of beliefs can exist in political ones just as they do in cases
of religious beliefs. This piece is not arguing that politics in itself is a
form of a religion, instead it is being argued that the distinction is
irrelevant when looking at it from a perspective of forced speech/forced
expression.
Instead
of going down the path of Bijoe Emmanuel wherein
the religious source of objection played a central role in the Court’s analysis
of freedom of expression, the proposed alternate framework would utilise an
understanding of symbolic speech seen in NALSA. The
alternate framework would be that, any conduct which communicates an intimate
aspect of a person’s identity to society would amount to non-verbal speech (aka
symbolic speech). Censorship of such symbolic speech would have to abide by the
reasonable restrictions placed on free speech as listed in Article 19(2).
On
an application of the proposed alternative framework in the case of the Hijab
bans of Karnataka it is clear that the bans are unconstitutional. Muslim women
have argued that given the marginalisation faced by Muslims in society,
publicly wearing a Hijab is an act of resistance and solidarity.
When a person wears a Hijab, they are communicating their religious affiliation
through the piece of clothing. The Hijab symbolises that person’s Muslim
identity to a viewer, it is not an unclear message as seen by the fact that a
major argument against allowing students to wear the Hijab is that it is a
religious symbol.
Therefore,
it can be easily established that wearing the Hijab is a form of symbolic
speech. One of the arguments against allowing the wearing of Hijab is that it
creates a law and order situation, which is seemingly proven by the outbreaks of violence in Karnataka, thus allowing the government
to justify the restriction on grounds of Article 19(2). However, a closer
analysis of the violence is required. The fact that Muslims were wearing the
Hijab by itself, was not a source for violence. It was only after the
enforcement of the government order, and the
counter-protests, that the law-and-order situation deteriorated.
Hijabs,
thus, cannot be equated to “fighting words” (i.e., speech of such nature that,
itself, provokes violence and chaos). The more appropriate applicable concept
here is the “heckler’s veto”, i.e. if an objector to a certain form of
expression is able to cause enough chaos, the state may opt for the easier
option of silencing the speaker rather than stopping the violence. The SC has
clearly stated in Prakash Jha Production
and Anr v Union of India and Viacom Media 18 Pvt.
Limited v Union of India, that the state cannot utilise
the Heckler’s veto to attempt to silence individuals. The court observed that
the state has an obligation to ensure that permissible speech is provided the
adequate protection required in order to ensure it is not silenced by threats
of causing violence. It has been established that the Hijab is a permissible
form of symbolic speech. Therefore the state is obligated to protect the
wearers of the Hijab.
A
final argument may be made that due to the Secular nature of India, it is open
for government institutions to prohibit religious attire. However, this line of
argument fails to take notice of the fact that Indian secularism has
consistently differed from the form of secularism practiced in European
countries. The French idea of secularism of state and church being distinct,
with religion being a private right with no relevance to the public sphere of
the state, is distinct from Indian secularism. In France, any form of religious
imagery including turbans is banned in schools, which
is completely unlike India where turbans have never been banned in public
institutions. Thus, Indian secularism has always seen equidistant involvement
of the state with religion rather than maintaining an arm’s-length distance.
Constitutional Articles Related To Freedom Of Religion And Educational
Rights:
·
Article 25 says that all persons are equally entitled to
freedom of conscience and the right to freely profess, practice and propagate
religion.
o Freedom of conscience: Inner freedom of an individual to frame his
relation with God or Creatures in whatever way he desires.
o Right to Profess: Declaration of one’s religious beliefs and faith openly and freely.
o Right to Practice: Performance of religious worship, rituals, ceremonies and
exhibition of beliefs and ideas.
o Right to Propagate: Transmission and promotion of one’s religious beliefs to others. But,
it does not include a right to convert another person to one’s own religion.
o Article 25 covers religious beliefs and also religious
practices (rituals).
·
Article
26: Freedom to Manage Religious Affairs, every religious denomination or any of its section shall have the
following rights:
o Right to establish and maintain institutions for
religious and charitable purposes.
o Right to manage its own affairs in matters of
religion.
o Right to own and acquire movable and immovable
property.
o Right to administer such property in accordance with
law
·
Article 27
- Freedom from Taxation for Promotion of a Religion
o No person shall be forced to pay any taxes for the
promotion or maintenance of any particular religion or religious denomination.
o The State
should not spend the public money collected by way of tax for the promotion or
maintenance of any particular religion.
o This provision prohibits the State from favoring and supporting one religion over the
other. This also means that the taxes can be used for the promotion or
maintenance of all religions.
o This provision prohibits only levy of a tax and not a fee.
·
Article 28
- Freedom from Attending Religious Instruction
o No religious instruction
shall be provided in any educational institution wholly maintained out of State
funds.
o No person attending any educational institution
recognised by the State or receiving aid out of State funds shall be required
to attend any religious instruction or worship in that institution without his
consent.
·
Article
29 - Protection of Interests of Minorities
o It provides that any section of the citizens residing
in any part of India having a distinct language, script or culture of its own,
shall have the right to conserve the same.
o No citizen shall be denied admission into any
educational institution maintained by the State or receiving aid out of State
funds on grounds only of religion, race, caste, or language.
o These rights are subject to
public order, morality, health and other provisions relating to fundamental
rights.
o The State is permitted to regulate or restrict any
economic, financial, political or other secular activity associated with
religious practice.
How To Do Draw The Line Between Matters Of Religion And Matters Other
Than Religion?
·
The ‘essential
practice’ doctrine can be traced to a 1954 decision of the Supreme
Court in Commissioner, Hindu Religious and Charitable Endowments, Madras vs.
Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, commonly known as the ‘Shirur
Mutt’ case.
·
This litigation
involved action sought to be taken by the Madras government against a mutt over
some disputes over the handling of financial affairs.
·
The madathipathi’s contention was that the Government could not interfere
in the mutt’s right to manage its own affairs under Article 26. Under this
Article, what was protected was the right “to manage its own affairs in matters
of religion”.
·
It was in this
context that the court said: “In
the first place, what constitutes the essential part of a religion is primarily
to be ascertained with reference to the doctrines of that religion itself.”
·
However, this
attempt to differentiate what essentially distinguishes a religious matter from
other matters was taken up in subsequent judgments to mean that courts are
required to distil the essence of a religion to see whether a particular
practice or act fell under the category of religion or not.
·
Hence, some acts
obtained constitutional protection by being declared “essential” to the
practice of that religion and some were denied protection on the ground that
they were not essential to it.
·
In several
instances, the court has applied the test to keep certain practices out. In a 2004 ruling, the Supreme Court held that
the Ananda Marga sect had no fundamental right to perform Tandava dance in
public streets, since it did not constitute an essential religious practice of
the sect.
·
In 2016, a three-judge Bench of the Supreme Court upheld the discharge of
a Muslim airman from the Indian Air Force for keeping a beard.
·
In Sardar Syedna Taher Saifuddin Saheb vs. Bombay (1962), the Supreme
Court struck down a law that prohibited the head of the Dawoodi Bohra community
from excommunicating members. The
majority ruled that the power of excommunication exercised by the religious
head on religious grounds was part of the management of affairs on religious
matters, and the Act infringed on the community’s rights.
·
In the Sabarimala case (2018), the majority ruled that the bar on entry
of women in the age-group of 10 to 50 was not an essential or integral part of
the religion, and denied the status of a separate religious denomination of
devotees of Lord Ayyappa.
Religious
Clothing And Symbols In Public Schools
In several cases, attempts by educational
institutions, including schools, to implement policy that bans or restricts
religious dress or symbols have been met with litigation by both teachers and
students. These challenges are generally based on a violation of the right to
religious freedom and, in some instances, discrimination based on religion,
gender or race. However, in a number of decisions the courts, in particular the
ECHR, have consistently found no interference with the claimant’s right to
manifest and practise their religious beliefs. In so doing, the courts have
recognised the authority of educational authorities to implement policies and
regulations restricting religious clothing and symbols in educational
institutions. In this section of the article, the decisions of several key
cases are examined with regard to the three prevailing themes — the right to
freedom of religion and it limitations; religious dress and discrimination; and
secularism as a basis for limiting rights.
A. Right To Freedom Of
Religion And Its Limitations
International human rights law and
domestic law recognise the right to freedom of religion and conscience, and the
importance of this right in culturally diverse, democratic societies has been
recognised by courts internationally. In the oft sited seminal Canadian case R
v Drug Mart Ltd[4] Dickson
CJC stated that ‘the essence of the concept of religious freedom is the right
to entertain such religious beliefs as a person chooses, the right to declare
religious beliefs openly and without fear of hindrances or reprisal, and the
right to manifest religious belief by worship and practice or by teaching and
dissemination’. The importance of religious freedom is also summed up by Sachs
J in Christian Education South Africa v Minister of Education: “There can be no
doubt that the right to freedom of religion, belief and opinion in the open
democratic society contemplated by the Constitution is important. The right to
believe or not to believe, and to act and not to act according to his or her
beliefs or non beliefs, is one the key ingredients of any person’s dignity.”[5]
Relevant to the discussion in this
article is Article 9 (Freedom of thought, conscience and religion) of the
European Convention on Human Rights (1950) (the ‘Convention’) which provides
that
(1) Everyone has the right to freedom of
thought, conscience and religion; this right includes freedom to change his
religion or belief, and freedom, either alone or in community with others and
in public or private, to manifest his religion or belief, in worship, teaching,
practice and observance.
(2) Freedom to manifest one’s religion or
beliefs shall be subject only to such limitations as are prescribed by law and
are necessary in a democratic society in the interests of public safety, for
the protection of public order, health or morals, or the protection of the
rights and freedoms of others.
The first paragraph of Article 9 defines
the content of the right to religious freedom and the second paragraph explains
when the right may be limited. Article 9 makes provision for the freedom of
thought, belief and conscience as well as the manifestation of such beliefs.[6] In
Kokkinakis v Greece[7] it was
stated that: freedom of thought, conscience and religion is one of the
foundations of a “democratic society” within the meaning of the Convention. It
is, in its religious dimension, one of the most vital elements that go to make
up the identity of believers and their conception of life, but it is also a
precious asset for atheists, agnostics, sceptics and the unconcerned. The
pluralism indissociable from a democratic society, which has been dearly won
over the centuries, depends on it.
Although the ECHR has largely refrained
from defining the concept ‘religion’[8]
the provision is nonetheless broadly construed to include a wide range of
theistic and non-theistic belief systems such as Scientology, Druidism[9]
and Moon Sect.[10] Judge
Tulkens in ?ahin v Turkey observes that ‘the right to freedom of religion
guaranteed by Article 9 of the Convention is a “precious asset’’ not only for
believers, but also for atheists, agnostics, sceptics and the unconcerned’.
Article 9 encompasses both individual and collective belief, as well as the
practice of belief in both public and private spaces. Manifestation may take
the form of worship, teaching, practice and observance. Murdoch[11]
states that a manifestation implies a ‘perception on the part of the adherent
that a course of activity is in some manner prescribed or required’.
Manifestations are thus central to the person’s religious beliefs and
practices. However, not every act or ‘manifestation’ motivated or encouraged by
religion or belief will fall within the ambit of Article 9.[12]
The wearing of religious dress and symbols is recognised by the courts as a
manifestation, observance and practice of one’s religious beliefs. In the cases
discussed below, wearing the Muslim headscarf is a manifestation of one’s
religious beliefs. In Dogru v France[13], the
court reiterated that ‘according to its case-law, wearing the headscarf may be
regarded as “motivated or inspired by a religion or religious belief”.
The second paragraph provides for the
‘balancing of rights against competing considerations found elsewhere in the
European Convention of Human Rights, and most obviously Articles 8, 10 and 11’.[14]
Whilst the right to religious freedom is recognised, like other fundamental
human rights, it is not absolute and may be limited. Other equally competing
and compelling rights may limit the exercise of religious freedom in public
spaces. It is recognised that the practice of religious beliefs may be in
conflict with other rights, for example, the right to equality or the right to
safety and security. The right to freedom of religion does not mean that one
can exercise that right at any time or place without limitation. For instance,
in Ahmad v United Kingdom[15],
the court stated ‘the freedom of religion, as guaranteed by Article 9, is not
absolute, but subject to the limitations set out in Article 9(2)’. This is
reiterated in the ECHR decisions. In Kalaç v Turkey[16]
it was stated that ‘while religious freedom is primarily a matter of individual
conscience it also implies, inter alia, freedom to manifest one’s religion not
only in community with others, in public and within the circle of those whose
faith one shares, but also alone and in private’ and that ‘article 9 does not
protect every act motivated or inspired by a religion or belief. Moreover, in
exercising the freedom to manifest his religion, an individual may need to take
his specific situation into account’. This was endorsed by the Grand Chamber in
?ahin v Turkey in which it was held that ‘Article 9 does not protect every act
motivated or inspired by religion or belief’ and that ‘in democratic societies,
in which several religions coexist within one and the same population, it may
be necessary to place restrictions on freedom to manifest one’s religion or
belief in order to reconcile the interest of various groups’.[17]
Article 9(2) thus sets out the ‘test’ to determine whether or not an
interference with or limitation on the right to religious freedom is justified.
The test requires that the limitation or interference must be (a) prescribed by
law, i.e. have a basis in law; and (b) be necessary in a democratic society,
i.e. have a legitimate purpose, and it must be proportionate in scope and
effect.[18]
The limitation or restriction on religious clothing and symbols in schools is
not automatically or necessarily a violation of the right to religious freedom.
The key consideration is whether such limitation serves a legitimate aim, and
may be justified in a pluralistic, democratic society. The challenged measure
must have a basis in domestic law that is accessible and foreseeable.
Justifiable grounds for limiting freedom of religion, thought and conscience
have included the public health, public safety, national security, protecting
the rights and freedoms of others[19]
and preventing fundamentalist religious movements from exerting pressure on
others.[20]
In light of the above discussion, the
first case that is considered relating to banning of religious clothing in
schools is the UK case of R (on the application of Begum) v Headteacher and
Governors of Denbigh High School (“Begum”)[21],
in which the House of Lords reversed the Court of Appeals decision that a
school violated a student’s right to freedom of religion by refusing to allow
her to wear the traditional jilbab to a public school.[22]
In this case Shabina Begum attended a co-educational school that was culturally
and linguistically diverse, although the students were mostly Muslim. The
school had a specific school uniform policy that offered three uniform options.
However, it did not permit students to wear the jilbab (a long loose fitting
garment worn by Muslim women). For two years Shabina and her sister wore the
prescribed school uniform without complaint or objection. In 2002 Shabina
started wearing the jilbab on her brother’s insistence. Shabina was advised by
the school that she would not be permitted to wear the jilbab which the school
uniform policy did not permit. The school was concerned that Shabina should
attend school but the brother acting for Shabina, would not compromise on the
dress requirement as an absolute obligation of the Muslim faith. The applicant
pursued legal action on the basis that the school had breached her human rights
under UK and European human rights law, in particular Articles, 9, 8 and 14 and
Article 2 of Protocol 1 of the Convention. Shabina Begum lost her case in the
High Court[23] but
succeeded on appeal where the Court of Appeal held that there was a violation.[24]
On appeal to the House of Lords it was held that Article 9 of the Convention
had not been violated or interfered with. The Lords accepted that wearing
religious clothing is a manifestation of religious belief and therefore fell
within the ambit of Article 9(1).[25]
However, in applying the test in Article 9(2) it was unanimously held there
were justifiable grounds to limit the applicant’s right to wear religious
clothing of her choice. It was affirmed that ‘Article 9 does not require that
one should be allowed to manifest one’s religion at any time and place of one’s
choosing’.[26] Lord
Bingham of Cornhill noted the authority set down by the Grand Chamber of the
European Court of Human Rights that in some situations it is necessary to
restrict freedom to manifest one’s religious beliefs citing ‘the value of
religious harmony and tolerance between opposing or competing groups; the need
for compromise and balance; the role of the state in deciding what is necessary
to protect the rights and freedoms of others; the variation of practice and
tradition among states; and the permissibility on some contexts of restricting
the wearing of religious dress’.[27]
In all the cases considered, the banning
of religious clothing and symbols did not amount to a denial of religious
freedom and it was recognised that protection of the rights of others may
require rights to be limited in certain circumstances. The cases illustrate the
difficulty of proving a violation of the right to freedom of religion and
establishing an interference with the right to manifest one’s religious and
practices. The ECHR has consistently recognised and reiterated the importance
of freedom of religion in a democratic society. However, rights are not
absolute and the right to freedom of religion may be limited. There is a substantial
body of ECHR jurisprudence that demonstrates the balance in favour of upholding
limitations that are grounded in the pursuit of a legitimate aim and necessary
for a ‘democratic society’. For instance in Kokkinakis v Greece, the court
emphasised that Article 9 ‘recognises that in democratic societies, in which
several religions co-exist within one and the same population, it may be
necessary to place restrictions on this freedom in order to reconcile the
interests of the various groups and ensure that everyone’s beliefs are
respected’.[28] The
crux of the matter is aptly summed up by Judge Tulkens: ‘Freedom to manifest a
religion entails everyone being allowed to exercise that right, whether
individually or collectively, in public or in private, subject to the dual
condition that they do not infringe the rights and freedoms of others and do
not prejudice public order’.[29]
Moreover, the ECHR has generally applied the principle of a ‘margin of
appreciation’ which essential means that the court will defer to national
decision-making as the court is not necessarily in the best position to know
the local circumstances.[30]
An assessment of the necessity of an interference with Article 9 is, therefore,
‘closely allied to the issue of subsiduarity’ which holds that ‘the primary
responsibility for ensuring that Convention rights are practical and effective
is that of the national authorities’.[31]
There is, however, not an ‘unlimited power of appreciation’ on the part of
Contracting States.[32]
In regard to religious practices in educational institutions, the court also
acknowledges the authority and expertise of educational authorities to draft
rules and regulations.[33]
In Dahlab v Switzerland, the court noted that it is settled law that
‘Contracting States have a certain margin of appreciation in assessing the
existence and extent of any interference, but this margin is subject to
European supervision’.[34]
To this end the court is concerned whether the measures taken by the State are
proportionate to the aims that it seeks to achieve.
B. Religious Dress And
Discrimination
The primary basis on which claims have
been brought in relation to the limitation or restriction on religious clothing
and symbols, is the right to religious freedom, conscience and thought under
Article 9 of the Convention. However, it is also possible to frame the claims
under protections against discrimination. Article 14 of the Convention provides
that the enjoyment of the rights and freedoms set forth in [the] Convention
shall be secured without discrimination on any ground such as sex, race,
colour, language, religion, political or other opinion, national or social
origin, association with a national minority, property, birth or other status.
Article 14 is an associated and
overlapping right that is read with Article 9. However, it does not confer a ‘free-standing
right or substantive right but rather expresses a principle to be applied to
the substantive rights conferred by other provisions’[35],
that is, by the rights set forth in the Convention. Hence read with Article 9 a
claimant can also bring an action for discrimination based on religion. In determining
discrimination Murdoch[36]
notes that the crux of the test is whether or not the applicant has been
treated in a different way to a relevant comparator, and if there is
differential treatment, whether such treatment is justified. The onus is on the
State to show the limitation was both objectively and reasonably justifiable.
Different treatment is not automatically discriminatory under Article 14. In
Dahlab v Switzerland, it was reiterated that for the purposes of Article 14 ‘a
difference in treatment is discriminatory if it does not pursue a legitimate
aim or if there is not a relationship of proportionality between the means
employed and the aim sought to be realised’.[37]
In the cases considered above, discrimination was not considered separately but
in association with Article 9, where applicable.[38]
To this end, the court is not likely to consider the issue of discrimination if
there is no violation of Article 9. Similarly, according to Murdoch the ‘European
Court of Human Rights will generally decline to consider any complaint of
discrimination under Article 14 when it has already established that there has
been a violation of a substantive guarantee raising substantially the same
point’.[39]
In ?ahin v Turkey, the court held that ‘the reasons which led the Court to
conclude that there has been no violation of Article 9 of the Convention or
Article 2 of Protocol No. 1 incontestably also apply to the complaint under
Article 14, taken alone or in conjunction with the aforementioned provisions’[40]
and therefore there was no violation of Article 14.
In the context of school uniform
policies, rules that favour one group over another or where a rule has less
favourable impact on one group may be construed as discriminatory. This is
illustrated in the UK case of Mandla v Dowell Lee[41], in
which a Sikh boy who wore a turban for religious reasons was refused admission
to the school. The school uniform rule that required all boys to wear a school
cap but not a turban was declared to be indirect discrimination. Thus, a school
that ordered a Catholic student to remove a crucifix necklace, while allowing
Muslim and Sikh students to wear religious symbols[42],
and a school that banned students from wearing Christian purity rings but allowed
Sikh students to wear kara[43]
bracelets[44] have
been accused of acting discriminately. The French law specifically prohibits
overt or obvious religious signs or dress. According to a report on the French
law a total of 639 religious signs were recorded in 2004-2005 that fell within
the ambit of the law.[45]
The Islamic headscarf is one such item that is considered overt and by which
the wearer’s religious affiliation is immediately identifiable[46]
and it is the banning of Islamic headscarves that has been at the centre of
most cases and discrimination claims.
It has been argued that prohibiting
Islamic headscarves amounts to indirect discrimination because it has a greater
impact on Muslim students because of the visible nature of the clothing and the
fact that it is more prescriptive. Plesner[47],
for instance, argues that French laws banning headscarves are not neutral and
do discriminate indirectly as they have more impact on particular Muslim
students with little impact on Christians and ‘those who do not feel obliged to
wear any religious signs’. Knights[48]
also contends that the French law may amount to indirect discrimination because
it disproportionately affects certain religious groups for instance Muslims,
Sikhs and Jews as against the Catholic majority who will be able to comply by
wearing a small cross. The distinction made here is whether or not the
requirement to wear religious clothing is a mandatory (obligatory) tenet.
However, as Thomas points out there are students in France ‘wearing headscarves
as a matter of personal conviction and those who do not want to wear
headscarves but are forced to do so by familial or community pressure’.[49]
This was the situation in the Begum case in which it was evident on the facts
and history of the case that for two years the respondent Ms Begum wore the
school uniform without complaint, until her brother (the litigation friend)
intervened after the death of the parents and insisted that his sister comply
with strict Muslim dress code and wear the jilbab.[50]
It was the brother who challenged the school on its uniform policy and
encouraged his sister to conform to a strict dress code. However, in the case
of headscarves, there is not consensus as to whether certain religious clothing
is a religious mandate. In the Begum case, the school had received a statement
from the Muslim Council of Britain on Muslim dress code for women stating that
‘there was no recommended style; modesty must be observed at all times;
trousers with long tops or shirts for school wear were absolutely fine’.
C. Secularism And
Maintaining Denominational Neutrality
A recurring theme throughout the
Strasbourg decisions discussed above is the right of schools, and in fact in
some countries a duty, to ‘maintain denominational neutrality’. In all the cases
considered, the fundamental principle of secularism and state neutrality has
been invoked as a legitimate ground for limiting the right to freedom of
conscience, thought and religion as ‘necessary in a democratic society’. The
thrust of the argument is that the prohibition on religious dress and symbols
is based on the legitimate interest in upholding secularism and maintaining
religious neutrality in educational institutions in order to protect the rights
and freedoms of others, and recognising religious diversity. The court has
accepted this position stating that ‘the Court notes that in a democratic
society in which several religions coexist within one and the same population,
it may be necessary to place restrictions on this freedom in order to reconcile
the interests of various groups and ensure everyone’s beliefs are respected’.[51]
The court considers the ‘notion of secularism to be consistent with the values
underpinning the Convention’[52]
and reiterates that ‘an attitude that fails to respect that principle will not
necessarily be accepted as being covered by the freedom to manifest one’s
religion and will not enjoy the protection of Article 9 of the Convention’.[53]
Secularism essentially refers to the
absence of religion in state affairs: ‘this principle contains the notion that
government and society must be protected from religious overreaching in order
to preserve the secular nature of government and the public’.[54]
However, the meaning of ‘secularism’ or ‘neutrality’ is far from simple and may
have different meanings and applications in different states.[55]
As Gibson cogently argues ‘secularism appears in liberal and fundamentalist
forms; liberal secularism only requires religion to be removed from any
position of power whereas fundamentalist secularism is the removal of religion
from society altogether’.[56]
Gibson further argues that this is an important distinction in that requiring
the ‘government to be devoid of religious affiliation does not necessarily
require that society be secular as well’.[57]
A number of countries, including France,
Turkey and Switzerland, have a system of government and a constitution based on
secularism, while in other countries, such as the United Kingdom and Ireland,
there is a strong connection between the state and church. France is
unequivocally a secular state as stated in the French Constitution of 1958:
‘France is an indivisible, secular, democratic and social republic’.[58]
The consequence of this is the acknowledgement of religious pluralism and state
neutrality towards religion. It does not imply, nor does it have the effect, of
the removal of religion from society, In Dogru v France, it is noted that the
basis for secularism is: the Act of 9 December 1905, known as the Law on the
Separation between Church and State, which marked the end of a long conflict
between the republicans, borne out by the French Revolution, and the Catholic
Church. Section 1 provides: “The Republic shall ensure the freedom of
conscience. It shall guarantee free participation in religious worship, subject
only to the restrictions laid down hereinafter in the interest of public
order”. The principle of secularism is affirmed in section 2 of the Act: “the
Republic may not recognise, pay stipends to or subsidise any religious
denomination”.[59]
Likewise in Turkey, secularism and state
neutrality are a fundamental Constitutional principle but religious activity is
not expunged from society. Article 2 of the Constitution of the Republic of
Turkey states ‘the Republic of Turkey is a democratic, secular and social state
governed by the rule of law; bearing in mind the concepts of public peace,
national solidarity and justice; respecting human rights; loyal to the
nationalism of Atatürk, and based on the fundamental tenets set forth in the
Preamble’.[60] The
Constitution provides that ‘[e]veryone possesses inherent fundamental rights
and freedoms which are inviolable and inalienable’.[61]
This includes the right not to be discriminated against[62]
and freedom of religion and conscience; however, none of these rights may be
exercised in a manner that would endanger ‘the existence of the democratic and
secular order of the Turkish Republic based upon human rights’.[63]
The ECHR has to this end recognised that secularism in Turkey was the guarantor
of democratic values and the principle the freedom of religion is inviolable
and the principle that citizens are equal, that is also served to protect the
individual not only against arbitrary interference from the State but also from
external pressure from extremist movements and that freedom to manifest one’s
religion could be restricted to defend those values.[64]
Therefore, public schools in France and
Turkey are strictly secular and non-denominational, and are generally
prohibited from engaging in religious activities. Religion is viewed primarily
as a private matter; a matter for parents and the church.[65]
Although controversial, the French law banning overt religious clothing and
symbols in public schools gives effect to the fundamental principle of
secularism or religious neutrality (Laïcité) in the public sphere, which is
considered a cornerstone of French democracy. Vaïsse[66]
argues that Laïcité is a principle of neutrality that is intended to ‘create
conditions for religious freedom’. He notes that this has been an important
historical development in French public schools, which have been places ‘where
a new civic identity could be nurtured, free from anti-democratic influences of
the Catholic Church’.
In the cases of Dahlab v Switzerland,
?ahin v Turkey and Dogru v France, secularism and the right to education that
is religiously neutral was upheld and validated by the court as a legitimate
basis for limiting the exercise of religious freedom in public educational
institutions. In Dahlab v Switzerland the court accepted the government’s
position that it was necessary to prohibit the teacher from wearing the
headscarf in the interests of protecting the rights and freedoms of others.[67]
The court held that it ‘appears difficult to reconcile the wearing of an
Islamic headscarf with the message of tolerance and respect for others’. In
?ahin, the court noted, with reference to other cases, that ‘in a democratic
society the state was entitled to place restrictions on the wearing of the
Islamic headscarf if it was incompatible with the pursued aim of protecting the
rights and freedoms of others, public order and safety’.[68]
The court further expressed the view that ‘[i]t is the principle of secularism
which is the paramount consideration underlying the ban on the wearing of
religious symbols in universities. In such a context, where values of
pluralism, respect for the rights of others, and in particular, equality before
the law of men and women, are being applied and taught in practice, it is
understandable that the relevant authorities should wish to preserve the
secular nature of the institution concerned and so consider it contrary to such
values to allow religious attire …’.[69]
Religious freedom can be limited in the
interests of public safety, which one would expect would require a consideration
of factors that would support such decisions. Judge Tulkens, for instance,
notes that in the ?ahin case no concrete examples were provided to show that
the applicant had contravened the principle of secularism through her attitude,
conduct or actions.[70]
Way Forward
The Law Commission in its report mentioned that ‘Cultural diversity
cannot be compromised to the extent that our urge for uniformity itself becomes
a reason for threat to the unity and integrity of the nation’.
Difference does not always imply discrimination. Diversity, both religious and
regional should not be subsumed under the louder voice of the majority. Codification of all religious laws is
necessary to avoid the controversies related to what is and what is not
essential religious practices under Right to freedom of religion guaranteed by
Indian Constitution. There are some protocols developed for regulating
educational institutions, any amendment in them must be made after consulting
all stakeholders, and once a decision is made then there must be a time limit
to implement them, for example any change introduced in the dress
code must be
made from next academic year and not in
the middle of the year, so that parents and students could plan in advance.
An
argument against the proposed framework may be made that it would lead to the
death of uniforms as a concept as every student would find one aspect of their
identity they wished to represent through a deviation from the standard
uniform. The common thread between the protests against Vietnam War through
black armbands and the Hijab is that the rest of the uniform is followed. There
is merely an addition made whilst the student continues to be clothed in the
prescribed uniform. In the case of R (Begum) v
Governors of Denbigh High School, the House of Lords
rejected the contention of a Muslim student that she ought to be able to wear a
‘Jilbab’ (Muslim full body attire) partially because the school allowed for
‘Hijabs’ and that the school had taken efforts to ensure that the uniform code
was ‘Muslim-friendly’. Thus, a line of distinction can be drawn if necessary
that deviations of uniform still require that the rest of the uniform be abided
by.
In
sum, therefore, the Karnataka High Court has an opportunity to continue the
growth of a novel jurisprudence of free speech which was germinated in
the NALSA decision. The High Court ought to base its
ruling on broad-based grounds of free-speech rather than restricting itself to
the comparatively narrower grounds of protection of essential religious
practices.
Article Information
Freedom of Religion and Attire in Educational Institutes (By-Dr.S.Krishnan & Mr. Sahil Hussain)
Author Name: Dr.S.Krishnan & Mr. Sahil Hussain
Title: Freedom of Religion and Attire in Educational Institutes
Email Id: s.krishnan22@gmail.com
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/06/15
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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