If Hijab goes, will all religious clothing too go from educational institutions?

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District administration has instructed even the teachers to be not allowed inside campus with hijab. Muslim teachers and staff publicly humiliated, had to remove their hijab before entering school campus. (Feb 14, 2021 / Mandya Dist., Karnataka)

By Ravi Singh Chhikara & Navneet Singh

The ban on Hijab in schools and colleges of Karnataka has resulted in a huge uproar and protests in the state and beyond. The state government has invoked Section 133 (2) of the Karnataka Education Act 1983, which says that a uniform-style of clothes has to be worn compulsorily by all students. The ongoing protests have put forth a constitutional issue before India that if Hijab goes, will all religious clothings go away from educational institutions? Well, if it’s an essential religious practice, then the Constitution mandates the government to restrict every other religious clothing too.

Now let’s see how religious clothing is constitutionally protected and when it can be prohibited in educational institutions?

It is trite to say that every person including a student is equally entitled under Article 25 of the Constitution to follow his/her religious clothing as instructed by their religion. However, this right to wear religious clothing, even if it is an essential religious practice, is subject to public order, morality, health, and other fundamental rights guaranteed under Part III of the Constitution. In the absence of any conditions referable under Article 25(1), an essential practice cannot be regulated or restrained.

Essentiality of Hijab in the Muslim religion

There is a clear and decisive consensus on the mandate of Hijab for Muslim women. The part governing the head covering is verse 59 of Surah Al Ahzab. The reference to jilbab in this verse indicates that the Islamic dress code for women not only consists of a scarf that covers the head, the neck and the bosom, but also includes the overall dress that should be long and loose. The word jilbab in this context should not be interpreted as modern usage of the word. According to the Lisan al Arab (a quintessential Arabic dictionary), jilbab refers to the khimar or headscarf. This verse specifically states that Muslim women must wear the headscarf in order to be known and recognized as believing women and to be protected.

Furthermore, reference can be made to verse 31 of Surah Noor. The context in which this verse was revealed must be understood to fully comprehend the import of the verse. According to Abu Abdullah Qurtubi, the 13th century mufassir (a scholar who interprets the Quran), women at the time of the revelation wore their headcovers tied behind their necks, leaving the upper chest, neck and ears bare as was the practice of the Christians at the time, as well as exposing the opening (singular jayb, plural juyub which is translated as “chests” in the above verse) at the top of the dress. The Quranic revelation confirmed the practice of covering the head, understood from the use of the word “khimar” in the verse (which means head covering, which was already in practice), and also explained that the custom of the time was not sufficient, and that women were henceforth to tie the existing headcover in front and let it drape down to conceal the neck and the dress opening at the top. When one speaks of the hijab as a cultural practice, indeed, it is a religious-cultural practice that predates Islam as there is clear evidence that Christian and Jewish women before Islam too wore some similar head-covering. This tradition was practiced by Christian women until the 20th century. Islam perfected this practice when Allah (SWT) revealed the above verse, mandating that the existing head covering was to cover more than just the head but also the neck, upper chest and ears as well. Allah (SWT) gave clear reasoning in the verse above as to why Muslim women wear hijab – in order to be known and not troubled.

Additionally, a Hadith, saying of the Prophet, reported by Thirmidi, states:

“Abdullah, son of Umar ibn al-Khattab, with whom Allah be pleased, reported that the Messenger of Allah said: “On the Day of Resurrection, Allah will not look at the man who trails his garment along boastfully”. Thereupon, Umm Salmah asked, “What should women do with their garments?” The Prophet said: “They should lower their garments with a hand span.” Umm Salamah further said, “Women’s feet would still be uncovered.” The Messenger of Allah (pbuh), replied: “Let them lower them a forearm’s length, but not longer.”

 

In the event of infringement of the dress code, punishment is referred in the Hadith is as follows:

“Fudhalah ibn Ubaid reported that the Messenger of Allah (s) said: Three people about whose evil fate you should not feel sorry: a man who disassociates himself from the Muslim Ummah, disobeys his Imam (the ruler of the Muslim Ummah), and dies in that state; a slave who runs away from his master and dies before returning to him; a woman whose husband goes away after having provided her with provisions but she displays her beauty during his absence. So do not be concerned about them.

 

The jilbab must conceal the underclothes. Such a requirement applies to the garment a Muslimah should wear for Salah as well, he said.

 

There will be, in the latter days of my Ummah, women who will be dressed and yet undressed. (They will be wearing) on their heads (things) resembling camels’ humps. Curse them. They are accursed.”

 

Therefore, Muslim women wear Hijab because the Quran unambiguously orders and mandates Muslim women to do so. An analysis of the Quranic injunctions and the Hadiths shows that it is a farz (obligatory) to cover the head and to wear a long-sleeved dress except for face; exposing the body otherwise is forbidden (haram). The discussions as above show that covering the head and wearing a long sleeve dress by women have been treated as an essential part of the Islamic religion, as also held by the Kerala HC in Amnah Bint Basheer and Another v. Central Board of Secondary Education (CBSE), New Delhi and Another. It also seems to be fundamental to the Islamic religion as not wearing the hijab is considered haram (forbidden). Prohibiting women from wearing the hijab against their religious commands would surely affect their religious faith. Thus, Article 25(1) protects such a prescription of the dress code.

We have also observed that the wearing of Hijab has not at all disturbed public order in any educational institution, has not been considered immoral and is not injurious to the health of any third person. Moreover, it does not infringe upon any fundamental right of any third person guaranteed under Part III of the Constitution. Thus, if a Muslim girl student wants to wear Hijab in any educational institution, she has the right to do so under Article 25.

Effect on religious clothing of other religious clothing

Article 14 guarantees every person the right to equality. However, a reasonable classification can be made by the Government in order to achieve a specific goal. Now, take other religions. In Sikhism, there are five articles of faith, known as ‘the five Ks’, that Sikhs are commanded to wear at all times and places including educational institutions to demonstrate their religious faith. These include Kesh (uncut hair), Kara (a steel bracelet), Kangha (a wooden comb), Kachera (cotton underwear) and Kirpan (steel sword). Wearing the five K’s are justifiably considered essential religious practices under Article 25 and thus, Sikhs are permitted to wear these five K’s in educational institutions.

Similarly placed are Muslim women students who want to wear Hijab in educational institutions. The wearing of Hijab comes under essential religious practice under Article 25. Restricting such a practice by educational institutions on the premise of Article 19(1)(g) would have an equal effect on other religions because both are at an equal pedestal. There seems to be no reason as to how Hijab is different from the religious clothing of other people. Thus, it seems that if the wearing of Hijab by Muslim women students is restricted, it would affect other religions, more specifically Sikhs.

Conclusion

People use religious clothing symbolically to express religious beliefs and conformity to religious authority. We have to understand that if the wearing of religious clothing is made mandatory at all times by one’s religion, which at the same time does not pose any threat to others or does not infringe upon anyone’s fundamental rights, the State has no right to interfere with such a practice.

The authors are advocates, Delhi High Court. Ravi Singh Chhikara tweets @ravi_chhikara

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Disclaimer: If Hijab goes, will all religious clothing too go from educational institutions? - Views expressed by writers in this section are their own and do not necessarily reflect Latheefarook.com point-of-view

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