The Udupi Hijab Controversy: Views in Light of the Indian Constitution

By Hrishikesh Goswami

Islam’s origins can be traced back to the Arabian Peninsula where Prophet Muhammad founded the community in Medina. However, veils constituted an important component of the dresses worn by women in many communities even before Islam’s institution. Veils and headscarves have historically been associated with women from the privileged section of society. Records show that veils and head-coverings were mandated for women from aristocratic households. Such rules find mention in Assyrian Law and also in prevalent customs in Greek and Persian societies. Similarly, Zoroastrians required women from privileged backgrounds to wear full-body coverings and headdresses.

In Judaism, many sects mandate women to cover their heads with a scarf. The Quran mentions three features of women’s dresses, the headscarf (khimar), the face veil (niqab) and the head-to-toe garment (jilbab). ‘Hijab’, in the Quran, is used to refer to a barrier/screen that separated Prophet Muhammad’s wives from others.

In the Quran, ‘hijab’ is prominently mentioned as a component of the discussion on modesty, respect etc. and is not strictly defined. The Muslim holy book describes and treats ‘hijab’ as a personal or cultural concept and not a religious one. However, over time, headscarves (hijab) have come to be viewed as an essential part of a woman’s attire and is often viewed as a religious mandate in many communities.

A major controversy emerged when a recent incident of discrimination at the Government Girls’ PU College in Udupi, Karnataka was reported in the National media. As per the various news reports, six students weren’t allowed entry into the classrooms for wearing a ‘hijab’. The girls were being marked absent by the school authorities from 31 December 2021. Allegedly, the principal of the college refused to entertain the girls’ parents.

At this juncture, the issue caught the attention of two organizations, Girls Islamic Organization (GIO) and Campus Front India (CFI), who approached the college authorities and the district collector in order to seek resolution of the matter. The protests that followed demanded the allowance of ‘hijab’ in the classroom and the grant of permission to the girls to resume classes. In light of these developments, the Government of Karnataka has promised uniform guidelines on uniforms at colleges in the state. This incident has shed light on a large number of social and legal fissures which have often evaded our conscience. These fissures and differences are exploited by political propaganda and are further aggravated.

Let’s shift our focus away from the political aspect and try to understand this incident in light of what the Indian Constitution and the Indian Laws hold. The longest written Constitution in the world, the Indian Constitution came into being as a result of lengthy debates and discussions of the Constituent Assembly which consisted of 389 members representing the people of India. The debates and discussions of the Constituent Assembly span over a period of 2 years 11 months 18 days. It was after such elaborate discussions that the founding fathers of the Constitution gifted India its soul.

The Preamble to the Indian Constitution, which carries in itself the spirit of the nation and its people, underlines the guiding principles of the Indian Constitution and its framers. The 42nd Amendment to the Indian Constitution inserted the word ‘secular’ into the preamble. This further highlighted secularism as one of the integral characteristics of the Constitution. The laws of the country have guarded all citizens against discrimination on the basis of religion, caste, creed and gender.

The Constitution, under Article 25 grants all citizens the ‘Freedom of conscience and free profession, practice and propagation of religion’. Article 25 to 28 embodies the Constitution’s secular model. The principle of secularity has been strengthened by the Supreme Court’s judgements at various junctures. The famous ‘basic structure doctrine’ judgement in the Kesavananda Bharati judgement reiterated the importance of ‘secular principles’ in the Indian Legal system. The Supreme Court, in the much-debated Ayodhya Case judgement (M Siddiq (D) Thr Lrs v. Mahant Suresh Das & Ors), reflected on the importance laid by the Constitution on ‘equality of all faiths’.

However, when incidents like the one that transpired in Udupi came to the fore, major questions were asked on the political will to uphold the principle of ‘secularity’ and ‘equality of all faiths’. In the past, ‘reasonable restrictions’ have been placed on the Fundamental Rights granted by the Constitution as was done by the insertion of Article 19(2) to 19(6) which placed certain restrictions on the Right to Freedom of Speech and Expression, as was granted to the people of India by Article 19(1). Noticeably, in its judgement in the case of Ratilal Panachand Gandhi v. The State of Bombay, the Supreme Court had reaffirmed the rights granted by Article 25 of the Constitution and had also highlighted the restrictions to the exercise of the same. The Court in the aforesaid judgement had referred to the provisions under Article 25 Clause 1, which provides that one must not harm public order, morality and health and their acts must not violate other provisions of the Constitutions, ensuring that religious activities undertaken by one group don’t harm the rights of any other member of the society. Further, the Court referred to Clause 2(a) and (b) of Article 25, which bestows the State with the power to enact laws that relate to economic, political, financial or secular activities and laws intended for social welfare which might interfere with religious practices of certain communities. Concisely summarised, the Constitution allows the Government to interfere with religious issues in order to ensure the overall wellbeing of the people. However, our Constitution also doesn’t permit discrimination on any grounds.

In the words of the Constitution, Article 14 states, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

Article 15 of the Constitution of India prevents discrimination on the grounds of religion, race, caste, sex, or place of birth.

Article 16 provides for equality of opportunity for all in the country. In a large number of cases in the past, deliberations have been made on possible exceptions to the Right to Equality in the form of Article 15(4) and Article 16(4), which, the Supreme Court in the Indira Sawhney v. Union of India judgement held to be ‘emphatic statement of equality and no exceptions. This emphasised the intention to bring about concrete measures to ensure equality. While equality is strongly professed by the Constitution and also by a large number of decisions of the Courts, incidents that discriminate against students on the basis of religion are a matter of great concern.

As per news reports, the college authorities justified their act of not allowing headscarves by stating the dress code set by the college. Similar incidents have come into notice in the recent past in other parts of Karnataka and the country, wherein headscarves have been banned in the name of ‘uniform’ by educational institutions. The first such issue surfaced in the year 2009 when a college in Bantwal issued similar instructions regarding headscarves. Cases filed before the Kerala High Court in the years 2015 and 2016 against the dress code issued for candidates sitting for the AIPMT exam, which would have denied entry into exam centres for students wearing the hijab, resulted in the Court allowing the students to take the exam wearing the hijab.

In the year 2016, the Kerala High Court after a thorough examination of the Quran and the Hadith held that wearing the hijab was an essential religious practice. Further, the Court in its examinations found that this dress did not violate public morality, social order or the health of other members of the society, thus passing the Constitutional validity test. It held that wearing the hijab did not hamper the other fundamental rights guaranteed by the Constitution and therefore, allowed the practice.

It is essential to note that uniforms have been used as a measure to maintain discipline among students for a long time, however, denying equal access to education in the name of uniform is a clear violation of the principles enshrined in the Constitution, which, by the means of different judgements, have been upheld by the Courts. It is also essential to comprehend and appreciate the fact that in India, a classroom can never be a religiously neutral space as deities like Goddess Saraswati are routinely worshipped in schools and colleges. Further, as was noted from the statements made by the girls at the centre of controversy in the recent case, they clearly expressed their conscious will to wear the hijab.

In a nation where the Constitution grants religious freedom and allows individuals to freely profess their own religious beliefs and safeguards every individual from all forms of discrimination, such incidents raise suspicions of discrimination and violation of the Constitutional principles.

Renowned Nobel laureate Nelson Mandela had once stated, “Education is the most powerful weapon which you can use to change the world.” Education begins in the family and continues in schools where the minds and personalities of young children are actually shaped. But what happens when such educational institutions, which are ought to inculcate feelings of empathy and humanity in young minds start discriminating against students on the basis of religion? Can such attitudes of educational bodies ensure an upcoming generation of religiously tolerant individuals? Certainly not.

Since time immemorial, we have seen how feelings of prejudice, ignorance and stereotyping towards people of certain religious groups have led to genocides and bloodshed. Mothers have lost sons; daughters have lost fathers, yet discrimination on the grounds of religion continues to haunt us as a society. It is high time that we as a society work towards building a religiously tolerant and secular nation. Thus, in order to realize the Constitutional principles, everyone from every religion should be educated about other religions and be allowed to find similarities between the practices and beliefs of different religions with their own. This can be achieved by making different people from varied communities live, work or study together. Inculcating the feeling of ‘Vasudhaiva Kutumbakam’, we must endeavour to create a society devoid of discrimination on any grounds, be it religion, caste, creed, gender or social background in order to secure a better future for the country and realize the goal of ‘Unity in Diversity.’

That's it for today,

Until then, Take Care :)

(Views are personal)

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Our today's author is Hrishikesh Goswami, 1st-year BSc. LLB(Hons.) from Gujarat NLU, a future lawyer, he believes in pairing books with experiences and learning from all happenings around him. An avid quizzer, he loves to ask questions and find answers to them. With a wide range of interests and hobbies, he believes in learning from everyone, old and young and from both successes and challenges.