FREEDOM OF RELIGION AND ATTIRE

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Freedom of religion and attire is and should be guaranteed to every single Individual. As we all know our Constitution guarantees the right to freedom of religion to not only individuals but also religious groups in India. This is enshrined in Articles 25 to 28.

Article 25 (Freedom of conscience and free profession, practice, and propagation of religion)

• Article 25 guarantees the freedom of conscience, the freedom to profess, practice, and propagate religion to all citizens.
• The above-mentioned freedoms are subject to public order, health, and morality.
• This article also gives a provision that the State can make laws:
• That regulates and restricts any financial, economic, political, or other secular activity associated with any religious practice.
• That provides for the social welfare and reform or opening up of Hindu religious institutions of a public character to all sections and classes of Hindus. Under this provision, Hindus are construed as including the people professing the Sikh, Jain, or Buddhist religions, and Hindu institutions shall also be construed accordingly.
• People of the Sikh faith wearing & carrying the kirpan shall be considered included in the profession of the Sikh religion.

Article 26 (Freedom to manage religious affairs)

• 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 (Freedom as to payment of taxes for promotion of any particular religion)

• According to Article 27 of the Constitution, there can be no taxes, the proceeds of which are directly used for the promotion and/or maintenance of any particular religion/religious denomination.

Article 28 (Freedom as to attendance at religious instruction or religious worship in certain educational institutions)

• This article permits educational institutions that are maintained by religious groups to disseminate religious instruction.
• This provides that no religious instruction shall be provided in State-run educational institutions.
• Educational institutions administered by the State but that were established under any endowment or trust which requires that religious instruction shall be imparted in such institutions are exempt from the above clause (that no religious instruction shall be provided).
• Any person who attends any educational institution recognized by the State or receiving State aid shall not be required to participate in any religious instruction that may be imparted in such institution, or also attend any religious worship in such institutions unless he/she has given consent for the same. In the case of minors, the guardians should have given consent for the same.

Restrictions on religious freedom

• Like all fundamental rights, the state can restrict the right for grounds of public order, decency, morality, health, and other state interests.
• Over the years, the Supreme Court has evolved a practical test of sorts to determine what religious practices can be constitutionally protected and what can be ignored.
• In 1954, the Supreme Court held in the Shirur Mutt case that the term “religion” will cover all rituals and practices “integral” to a religion.

Essential Religious Practices test

• The test to determine what is integral is termed the essential religious practices test.
• The Supreme Court in Shirur Mutt Case held that what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.
• Hence, the judicial determination of religious practices has often been criticized by legal experts as it pushes the court to delve into theological spaces.
• The scholars agree that it is better for the courts to prohibit religious practices for public order rather than determining the practices essential to a religion that needs to be protected.
• The court has applied The test in several instances to keep certain practices out, for instance, it was held by the Supreme Court that the Ananda Marg sect had no fundamental right to perform Tandava dance in public streets in its 2004 ruling based on the fact that it did not constitute an essential religious practice of the sect.
• The court has applied the test to individual freedoms also while these issues are largely understood to be community-based.
• For instance, the Supreme Court in 2016 upheld the discharge of Muslim airmen from the Indian Air Force for keeping a beard. The case of Muslim airmen was distinguished from Sikhs who are allowed to keep a beard.
• According to Regulation 425 of the Armed Force Regulations, 1964, the growth of hair by Armed Forces personnel is prohibited, except for personnel whose religion prohibits the cutting of hair or shaving of the face.
• The court essentially held that keeping a beard was not an essential part of Islamic practices.

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Issue of Hijab

In Amna Bint Basheer v Central Board of Secondary Education (2016): the Kerala High Court held that the practice of wearing a hijab constitutes an essential religious practice but did not quash the dress code prescribed by CBSE. It rather provided additional safeguards, such as examining students wearing full sleeves when needed.

Fathima Tasneem v State of Kerala (2018): Kerala HC held that the collective rights of an institution would be given primacy over the individual rights of the petitioner. The case involved two girls who wanted to wear the headscarf. The school refused to allow the headscarf. However, the court dismissed the appeal as students were no more on the rolls of the respondent-School.

Recent Developments on Hijab Row

HIJAB ROW BEGINS ON NEW YEAR'S DAY 2022: Muslim girl students of the state-run PU College in Karnataka's Udupi alleged on Saturday, January 1, 2022, that they were denied entry into the classroom for wearing hijab. Allegedly, principal Rudra Gowda did not permit them to wear hijab in the classrooms. Gowda said the rule was being followed to ensure uniformity in classrooms.

SAFFRON SHAWLS EMERGE: On January 3, a section of college students in Karnataka's Koppa district wore saffron scarves protesting allegedly against allowing Muslim women to wear hijab inside the classroom. The students of the government-run college in Balagadi village claimed that if hijab was allowed inside, then saffron scarves could be sported too.

MEETINGS AND PROTEST TAKE PLACE OVER HIJAB ROW: On Wednesday, January 19, a meeting was conducted between students, parents, government officials and the school management of the state-run PU College in Karnataka's Udupi, with the aim of solving the issue of the Hijab row. However, according to those who participated in the meeting, no conclusion was reached. The very next day, the five girls began protesting outside the school. They held placards as a sign of protest against the decision not to allow them to attend classes while wearing hijabs.

KARNATAKA GOVT SETS UP EXPERT PANEL TO SOLVE HIJAB ROW: On January 26, the Karnataka government set up an expert committee to resolve the issue involving hijabs inside classrooms. It was announced that all girls should adhere to uniform rules until the committee's recommendations came.

WRIT PLEA ON HIJAB ROW IN HIGH COURT: On January 31, a writ petition was filed in the Karnataka High Court by a Muslim girl student from Udupi seeking a declaration that wearing a hijab is a fundamental right. The plea stated that the Indian constitution guarantees the Freedom of Conscience and the right to profess, practice and propagate religion.

GIRLS STAGE WALKOUT AFTER NOT BEING ALLOWED TO CLASSES WITH HIJAB: On Monday morning, February 7, three students wearing hijabs walked into Kalavara Varadaraj government College in Koteshwara town of Karnataka’s Udupi district. Upon seeing this, other students began wearing saffron shawls as a sign of protest. The principal convinced them to not wear the saffron shawls and they entered. The principal asked the girls to remove their hijabs too. Not willing to budge, the three girls with hijabs walked out of the college. On the same day, in Mandya district, a large number of students in Mandya district Karnataka turned up at college wearing saffron shawls and chanting ‘Jai Shri Ram.

The final judgment is pending hearing will continue.

Supreme Court’s view on Religious Freedom: The Supreme Court has evolved a practical test of sorts to determine what religious practices can be constitutionally protected and what can be ignored. 

Shirur Mutt Case 1954: In the case of Shirur Mutt the doctrine of “essentiality” was invented by the Supreme Court. The court held that the term “religion” will cover all rituals and practices “integral” to a religion, and took upon itself the responsibility of determining the essential and non-essential practices of a religion.

The essential religious practice test is a contentious doctrine evolved by the court to protect only such religious practices which were essential and integral to the religion.

Some important changes that have taken place in a few years with respect to Religion freedom 

Entry of women into the Sabarimala temple: On 28th September 2018, SC lifted the ban that prevented women and girls between the age of 10 and 50 (mainly menstruating women) from entering the famous Ayyappa shrine in Kerala by a majority verdict of 4:1. It held that the centuries-old Hindu religious practice was illegal and unconstitutional (Article 14 and 25). Temple custodians argue that women of menstrual age are prohibited from offering prayers as the deity there, Ayyappa, is a celibate.

Muslim women’s entry into mosques: In April 2019, the SC was moved to seek directions for allowing Muslim women to enter mosques through the main door, and to have the “Islamic right to visual and auditory access to the ‘musalla’ (main prayer area)”. The petition said that “this act of prohibition is void and unconstitutional as such practices are not only repugnant to the basic dignity of a woman as an individual but also violative of the fundamental rights guaranteed under Articles 14, 15, 21, and 25 of the Constitution”. The matter was last heard on November 5, 2019, by a Bench comprising CJI-designate Justice S A Bobde and Justices S Abdul Nazeer and Krishna Murari.

Female genital mutilation among Dawoodi Bohras: On September 24, 2018, a Bench of SC referred the matter in ‘Sunita Tiwari vs Union of India and Ors’ to a larger Bench of the Supreme Court. The petition, filed under Article 32 of the Constitution, had questioned the constitutionality of the practice of Female Genital Mutilation (FGM) or ‘khatna’, or Female Circumcision (FC) or ‘khafd’, which the petitioner said was carried out on every girl child in the Dawoodi Bohra community. The petition relied on the UN Convention on the Rights of the Child and the Universal Declaration of Human Rights and urged that the practice is violative of Article 21 (right to life and personal liberty). The Bench submitted that the matter should be referred to a larger Bench, which the SC accepted.

Triple Talaq: Shayara Bano v. Union of India

Talaq-e-biddat known as triple talaq, is a kind of divorce through which a Muslim man could divorce his wife by uttering the words talaq talaq talaq. A 5 judges bench of the Supreme Court heard the controversial Triple Talaq case. The main issue, in this case, was whether the practice of Talaq-e-biddat (triple talaq) is a matter of faith to the Muslims and whether it is a constituent of their personal law. By a 3:2 majority, the court ruled that the practice of Talaq-e-biddat is illegal and unconstitutional. The court also held that an injunction would continue to bar the Muslim male from practicing triple talaq till legislation is enacted for that purpose.

The government formulated the Muslim Women (Protection of Rights on Marriage) Bill, 2017. Later, the Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 was passed. As the 2018 ordinance was about to expire, the government formulated a fresh bill in 2019 and an ordinance was passed for the same in 2019 which was approved by the President finally the Muslim Women (Protection of Rights on Marriage) Act, 2019 came into force on July 31st, 2019 with an objective “to protect the rights of the married Muslim women and prohibit the Muslim male to divorce the wife by pronouncing talaq”.

Ours is a most diverse country with respect to religion. Being a secular country it does not have its own religion and every citizen has the right to choose, practice, propagate and even change his or her religion. However, these rights are not absolute but subject to certain restrictions provided by the constitution. No person in the name of religion can do any act that is opposed to the public policy or create any kind of disturbances or intolerance among the people of India. Freedom of religion and attire perfectly maintain peace in our secular country and it is much needed for a secular country like India.

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