Hijab And Choice: A Constitutional Perspective

SFI members demonstrate in Chennai in support of hijab-wearing Karnataka students who are being denied entry into some colleges | Photo: AFP

Freedom and Constitution: Freedom of religion is part of the Indian Constitution. Nevertheless, it is the weakest fundamental right of all the available fundamental rights in Part III thereof. It is weakest for the simple reason that it is subject to all other fundamental rights; in addition to claw back clauses which are part of every fundamental right in the Indian Constitution. Thus, if there is conflict between Freedom of Religion under Article 25 and Equality in Article 14, it is the latter that will prevail. Similarly, in any conflict between Article 21 and Article 25, it is the former that prevails. Additionally, State has been empowered to regulate freedom of religion on the grounds of public order, health and morality. Thus, a state is well within its rights to regulate the freedom of religion on the grounds mentioned above. 

Freedom of religion is not merely to have faith in religion but includes the right to practice or manifest it. The Supreme Court has laid down that what is guaranteed under freedom of religion is core of religious belief and anything which is not core has no protection under Article 25. 

Now let us examine if hijab is core of Islamic faith and if the Karnataka government is violating the fundamental right of Muslim by prescribing a uniform for schools and colleges. 

Direct And Indirect Violation Of Freedom Of Religion

A direct violation of fundamental right would have taken place if the state had proscribed Muslim student to not to wear hijab per se, assuming that wearing hijab is fundamental right under Article 25. An indirect violation takes place when a general rule, such as policy of neutrality, breaches the fundamental right of a section of society inadvertently and because of the generic nature of the rule in question. The present case is the question of indirect violation of fundamental rights, if any, on the basis of neutrality. The essential requirement for such rules to be valid is that the rule treats everyone equally to establish a neutrality of value system. The European Court of Justice has approved the rules that indirectly prohibit the wearing of any religious symbols on the ground of rule of neutrality. As said, the only test is that such a rule must not target any particular section of society. 

Hijab And Quran

The reference to modest clothing that appears in Quran is mentioned in Surah Noor (24:31), which reads: 

“And tell the believing women to reduce [some] of their vision1 and guard their private parts and not expose their adornment2 except that which [necessarily] appears thereof3 and to wrap [a portion of] their headcovers over their chests and not expose their adornment [i.e., beauty] except to their husbands, their fathers, their husbands’ fathers, their sons, their husbands’ sons, their brothers, their brothers’ sons, their sisters’ sons, their women, that which their right hands possess [i.e., slaves], or those male attendants having no physical desire,4 or children who are not yet aware of the private aspects of women. And let them not stamp their feet to make known what they conceal of their adornment. And turn to Allah in repentance, all of you, O believers, that you might succeed.”

In this Quranic injunction, the word hijab is not mentioned at all. What is mentioned is ‘wrap their head-covers over their chest’. One may ask if Hijab is the only way to wear a head-cover with which the female chest could be covered. Did Allah envision only a hijab while prescribing this verse for believing women? A book that has universal application cannot rule out the manifestation of covering the chest with myriad kinds of clothes. Salwar-dupatta and saree, as popularly worn in South India, is as good as hijab.

If a Japanese woman converts to Islam, is hijab the only cloth that fulfills her desired compliance with 24:31? Can God favour one kind of clothes with identical outcome over hijab? For example, if a dupatta worn over the head in such fashion as to cover the chest, would it be non-confirming to 24:31? 

Moreover, the verse allows to slavery, which is in direct contradiction with Constitution, Article 23. Additionally, the injunction also says not to expose their adornment [i.e., beauty] except to “their husbands, their fathers, their husbands' fathers, their sons, their husbands' sons, their brothers, their brothers' sons, their sisters' sons, their women, that which their right hands possess [i.e., slaves], or those male attendants having no physical desire…”. The question is could we be so selective in extracting the right to manifest religious faith from a Quranic source that all other conditions are ignored. 

The Quran mandates women to show their beauty only to people who are mentioned therein. It gives birth to the concept of Mahram. The religious scholars are divided on the exact meaning of this verse when it comes to zinah (nice clothes or ornaments) and body parts that can be shown to non-mahram men and women. 

For Muslims, even non-muslim women fall into the category of non-mehram, and hence they are required to follow zinah from slaves and non-Muslim women too. The idea behind the verse is non-mahram should not see Muslim women unless there is need. What constitutes ‘need’ is, of course, not clear. In the tafsir on Quran, what is mentioned is the two sides of sheets — one over other which would constitute Hijab. 

One must remain mindful that the scholars had only one geographical area across the whole world in their knowledge. They used that limited knowledge to write the tafsir. It does not explain the plurality of women head-covers as used by women outside the Middle East (be it pre-Islamic or Islamic). 

Hijab should be understood as a piece of cloth to cover the head and chest of women alike. It may be one piece of cloth or may come from two pieces of clothes and must keep the geographical local practices in mind.

If we insist that hijab, as understood by muslim women in India currently, is the only piece of cloth that protects modesty, we will be arguing that all others clothes are vulgar and inappropriate for women — since these are the words of Allah for present and future both. So a future Muslim convert must give up the dresses or traditional outfit in order to comply with Quranic injunction under 24:31, which is absurd. Should a Japanese convert give up her traditional clothes to become Muslim because the whole world has to become Muslim sooner or later because it is the mandate of the Allah? 

This interpretation would mean all clothes except hijab are un-Quranic and hence, haram. Whereas, if we interpret the hijab as flexible clothing that accommodates all kinds of clothes across the world then when everyone would become Muslim they will not have problem is gurading their modesty. 

Thus hijab could be a dupatta, a saree, what Japanese women wear, or European traditional dress for women. 

No one is objecting the hijab per se, what is in question is limited regulation of its wearing at certain places like schools and colleges. Therefore, the question is, by prohibiting the hijab within school or college, and not outside thereof, is there any violation of fundamental right under Article 25?

Having said that, since hijab, as understood in the Middle East, is banned in many countries, including Islamic nations, it suggests the fact that it is not core of the religious belief, and hence it could be regulated by the State. The European Court of Justice has approved prohibition of hijab on many occasions, most recently in IX v Wabe and MH Müller Handels v MJ [2021 EUECJ C-804/18 and C341/19] cases. These two cases involved the employers who banned staff from wearing religious symbols at work. 

Hijab, therefore, is not something that falls within the freedom guaranteed under Article 25 as the right to manifest religious faith.

The author is a PhD fellow at Hamburg University. He has written two books on financial laws.

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