Lipstick Under My Hijab: India, Religion, and Hijab

By Vishwajeet Deshmukh

Vishwajeet Deshmukh is an undergraduate law student at Government Law College, Mumbai,
India.

In February 2022, female students were banned from entering a college in Udipi,
Karnataka, India because the students wore “hijabs” [1]. A hijab is a veil worn by Muslim
women, covering the head and chest [2]. The ban on hijabs has resulted in large-scale protests
across India and sparked controversy over religious liberty.​

Article 25(1) of the Indian Constitution grants individuals the freedom of conscience and
the right to profess, practice, and propagate religion. This right guarantees that the state will
ensure there is no interference or obstacle to exercising this freedom [3]. However, the question
remains: Does the Indian Constitution protect a woman’s right to wear a hijab?

The Supreme Court of India has resolved to establish a test to determine the religious
freedoms covered under the Indian Constitution. In the case The Commissioner, Hindu Religious
Endowments, Madras v. Shri Lakshmindar Tirtha Swamiyar of Shri Shirur Mutt (1954) [4], the
Supreme Court of India constructed the “essential religious practices doctrine.” The Court held:
“What article 25(2)(a) contemplates is not regulation by the State of religious practices as such,
the freedom of which is guaranteed by the Constitution except when they run counter to public
order, health and morality, but regulation of activities which are economic, commercial or
political in their character though they are associated with religious practices.” Thus, the test
essentially granted the Court the power to determine what religious practices are protected. This
decision became a precedent for other cases concerning religious freedoms.

In Bijoe Emmanuel v. State of Kerala (1986) [5], the Supreme Court held that when the
fundamental right to freedom of conscience and to profess, practice, and propagate religion is
invoked, the act accused of violating the fundamental right must be examined by the Court to see
if it is necessary to protect public order, morality, or health, or if it is authorized by a law
regulating or restricting any economic, financial, political, or secular activity.

In the context of the hijab, there are two instances where the Courts have deliberated its
constitutionality. In the Amna Bint Basheer v Central Board of Secondary Education (2016) [6],
a female student challenged the dress code established by the Central Board of Secondary
Education, asserting that wearing a hijab is an essential religious practice. Justice Mustaque
examined Quranic texts to hold that it is a religious obligation to cover the head and wear modest
clothing. The judge acknowledged some believers of Islam might have differing views or
opinions, but this was not an appropriate ground to deny religious freedom. The Court favored
the petitioner and held that wearing a hijab constituted an essential religious practice. This,
however, did not subdue the dress code prescribed. Instead, the Court provided additional
security norms to be implemented by the examination board for students who wear headscarves
or long-sleeves.

Subsequently, in State of Maharashtra v. Tasneem Rizwan Siddiquee, (2018) [7], the
Kerala High Court held that institutional collective rights take precedence over individual rights,
thus allowing the management of an educational institute to set their dress code (“uniform”) and
enforce the said dress code. The management of the educational institute reserves the power to
dismiss students who do not conform to the dress code set by them.
The Supreme Court of India in the case Asha Ranjan and Others vs State of Bihar and
Others (2017) [8], while deliberating on the competing nature of public interest and individual
rights held that public interest prevails over an individual’s rights. The Karnataka High Court
used this judgment in the order passed while comparing the rights of the institution and the
individual thereby holding that the public interest of the institution supersedes the individual
rights of the students to wear a burqa.

Most recently, in March 2022, the Karnataka High Court in the Smt Reshma vs. State of
Karnataka (2022) [9] held that the hijab was not a part of the essential practices of Islam. The
Karnataka High Court relied on the Supreme Court decision in Indian Young Lawyers
Association v State of Kerala [10] which provided for the test of ‘essential practices of a
religion:’ religious practice in order to be called an ‘essential religious practice’ should have the
following indicia: (i) Not every activity associated with the religion is essential to such religion.
Practice should be fundamental to religion and it should be from the time immemorial. (ii)
Foundation of the practice must precede the religion itself or should be co-founded at the origin
of the religion. (iii) Such practice must form the cornerstone of religion itself. If that practice is
not observed or followed, it would result in the change of religion itself and, (iv) Such practice
must be binding for the religion and must be compelling. The Karnataka High Court reasoned
that the practice of wearing the hijab may be from time immemorial but, it does not qualify the
test of essentiality as stipulated by the High Court. A religious and historical analysis of the
Quran (religious text of Islam) by the Court provided that wearing the hijab is only a
recommendatory practice, and thus, not mandatory. In conclusion, the Court held that hijabs
could be banned by educational institutions because they are not a part of the essential practice of
Islam. The decision will be challenged in the Supreme Court of India.

According to the International Covenant on Civil and Political Rights (“ICCPR”), Article
18 provides the right to freedom of thought, conscience, and religion. This right includes the
freedom to have or adopt a religion or belief of one’s choice and freedom, either individually or
in community with others and in public or private, to manifest his religion or belief in worship,
observance, practice, and teaching [11].

In 1993, the United Nations Human Rights Committee interpreted Article 18 of ICCPR to
include “ceremonial acts and such customs as the observance of dietary regulations, the wearing
of distinctive clothing or head-coverings”. In 2018, the United Nations Human Rights
Committee reaffirmed this interpretation through the case of Miriana Hebbadj v. France [12]
and Sonia Yaker v. France [13]. However, ICCPR Article 18(3) provides that any limitation on
freedom of religion must be non-discriminatory and must be necessary and proportionate to
protect public safety, order, health, morals and the fundamental rights and freedom of others.
Several nations have banned the practice of head and face covering—such as the hijab or
its variation, the burqa—in public spaces, including France (2011), Bulgaria (2016), China
(2017), Austria (2017), Netherlands (2019), Switzerland (2021), Sri Lanka (2021), and Belgium
(2021). Governments typically justify these bans on grounds such as security and public order.
According to the proponents of the face veil ban, this freedom is limited where communication is
vital for public service and for security in society. Several nations consider the ban necessary to
combat the oppression of women [14].

Rashad Hussain, the United States Ambassador at Large for International Religious
Freedom commented on Karnataka’s hijab ban, criticizing the state and arguing that religious
freedoms include the right to choose one’s religious attire. The Indian Ministry of External
Affairs criticized Hussain’s statement and stated that motivated comments on India’s internal
affairs are not welcome [15].

Whether or not burqa/hijabs are an essential religious practice is a question that can only
be settled by the Supreme Court of India to end the ongoing debates over religious freedoms.

The decisions of the Supreme Court of India are binding on all the subordinate courts in India,
and thus, their deliberation is bound to provide clarity to the nation. In India, the decisions of the
Supreme Court are binding on all the states and High Courts, whereas the binding effect of High
Court is limited only to the state in question. Different state High Courts have taken different
views on the burqa and hijabs. Does the politics of hijab go beyond attire at institutions and
touch the cornerstone of religious extremism? While we uncover the veil in public let us not be
blind to acknowledge the politics in India and the long history of Hindu-Muslim conflicts used
by political machineries.

[1] Kukreja, A., 2022. 'They cannot force this upon us': Muslim women in India protest hijab
ban. [online] NBC News. Available at: <https://www.nbcnews.com/news/world/muslim-women-
india-protest-hijab-ban-rcna17038> [Accessed 28 February 2022].

[2] Ibid.

[3] India, and Gopal Sankaranarayanan. 2014. The Constitution of India.

[4] The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Tirtha
Swamiyar of Shri Shirur Mutt, 1954 AIR 282, 1954 SCR 1005.

[5] Bijoe Emmanuel & Ors. v. State Of Kerala & Ors., 1987 AIR 748.

[6] Amnah Bint Basheer v. CBSE, 2016 (2) KLT 601.

[7] State of Maharashtra v. Tasneem Rizwan Siddiquee, (2018) 9 SCC 745.

[8] Asha Ranjan vs. State of Bihar, (2017) 4 SCC 397.

[9] Smt Resham v. State of Karnataka, W.P. NO.2347 OF 2022.

[10] Indian Young Lawyers Association v State of Kerala (2019) 11 SCC 1.
[11] UN General Assembly, International Covenant on Civil and Political Rights, 16 December
1966, United Nations, Treaty Series, vol. 999, p. 171, available at:
https://www.refworld.org/docid/3ae6b3aa0.html [accessed 28 February 2022].

[12] Miriana Hebbadj v. France, 17 July 2018, Human Rights Committee, Communication No.
2807/2016.

[13] Sonia Yaker v. France, 17 July 2018, Human Rights Committee, Communication No.
2747/2016.

[14] Web Desk Outlook, 2022. Countries That Have Banned Burqa And What International Law
Says About It. [online] Outlook India. Available at:
<https://www.outlookindia.com/international/countries-that-have-banned-burqa-but-what-does-
international-law-tell-about-it--news-121782 > [Accessed 28 February 2022].

[15] Ministry of External Affairs, Government of India. 2022. Official Spokesperson's response
to media queries on India’s reaction to comments by some countries on dress code in some
educational institutions in Karnataka. https://www.mea.gov.in/response-to-
queries.htm?dtl/34859/Official_Spokespersons_response_to_media_queries_on_Indias__to_com
ments_by_some_countries_on_dress_code_in_some_educational_institutions_in_Karnataka.

The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.