The recent and highly contentious ban on Hijab in educational institutions has sparked intense legal debatesacross India, challenging long-standing practices that have been integral to the identity of many students incaseof Zainab Abdul Qayyum Choudhary and Ors. vsChemburTrombay Education Society and Ors,whichhasnowescalatedtotheSupremeCourt.The petitioners,whoarelaw-abiding students,contendthatthe baninfringesupontheirfundamentalrighttoreligiousexpressionasenshrinedunderArticle25oftheConstitution.TheyarguethatwearingtheHijabalongsidetheirschooluniformsdoesnotdisruptpublicorderorimpedetheeducationalprocessbutinsteadservesasa criticalexpression oftheirfaith.TheBombay HighCourt dismissed their claims, ruling that the Hijab does not constitute an essential religious practice withinIslam, thereby excluding it from constitutional protection. This ruling, now under the scrutiny by the SupremeCourt, that has issued a stay orderon an instruction by a private college in Mumbai, which had prohibitedstudents from wearing the Hijab, caps, or badges on campus. Thecase has beenscheduled forfurther hearingsinNovember,withthebenchallowingthecollegetoseekmodificationoftheorderifnecessary.
JudicialAuthorityvs.IndividualAutonomy:AContestedJurisprudence
The Bombay High Court’s ruling, which upheld the ban on the hijab in educational institutions by invokingthe “essentiality test,” raises a critical question: Is it within the judiciary’spurview to delineate what constitutesan essential religious practice? This test, originally conceptualised to protect religious practices from stateinterference, has paradoxically evolved into a tool for judicial overreach, wherein courts have assumed theroleof arbiters of religiousorthodoxy. The judiciary’s intervention indetermining theessentialityof thehijabto Islam not only encroaches upon religious autonomy but also strips individuals – particularly women – oftheir agency. The argument that the hijab has “something to do with culture but certainly not with religion”reflects a reductive approach that fails to acknowledge the nuanced and deeply personal nature of religiousexpression. By imposing a binary framework on what is inherently a complex and multifaceted issue, thecourt’s ruling undermines the very essence of religious freedom as enshrined in Article 25 of the Constitution of India.
The application of the essentiality test, as seen in the Karnataka High Court’s verdict, illustrates a troublingtrend where courts, rather than safeguarding religious liberties, have begun to circumscribe them. Thejudiciary’sinconsistentapplicationofthistest – demonstratedbydisparaterulingsonissueslikeinstantrightto keep beard as essential practice, triple talaqand mosque land disputes– exposes the inherent arbitrarinessof this doctrine. Such judicial intervention not only contravenes the constitutional guarantee of religiousfreedombut alsodisregards the individual’s right topersonalchoice.
In the case of the hijab, thecourt’sfocus on the essentiality test, at the expense of considering the agency and choice of Muslim women, reveals apaternalisticattitudethatisantitheticaltotheprinciplesofindividualautonomyandreligiouspluralism.This approach not only restricts religious freedom but also perpetuates aculture where the state – and by extension,thejudiciary – assertsundueauthorityoverdeeplypersonalandspiritualmatters.
TheLegitimacyoftheHijabinPublicInstitutions:UpholdingConstitutionalRights
The struggle for quality education among Muslim women has historically been fraught with challenges,particularly within a socio-cultural milieu that often undervalues their right to education. Despite a gradualshift in mindset within the community, where education is increasingly embraced, the literacy rate amongMuslim womenremains alarmingly low, a reality further compounded by the pervasive societal barriers that impedetheireducationaladvancement. Inthiscontext,thehijab – farfrombeingamerecultural symbol – is an intrinsic part of a Muslim woman’s religious identity, deeply embedded in her spiritual and moralconvictions. It serves as an outward expression of her faith and is a manifestation of her constitutionallyguaranteed right to religious freedom under Articles 25 and 26 of the Constitution. The denial of thisrightwithinpubliceducationalinstitutionsnotonlyinfringesuponherreligiouslibertiesbutalsoperpetuatestheeducationalmarginalizationofMuslimwomen,exacerbatingthesystemicinequalitiestheyface.
JudicialPrecedentsandGlobalJurisprudence:ACallforConstitutionalSafeguards
The constitutional validity of the hijab in public institutions must be evaluated not only through the lens ofdomestic legal principles but also in light of foreign judicial precedents that have upheld religious freedomsin educational settings. The Udupi hijab case, which touches upon the sensitive intersection of religiousfreedom and educational access, demands a similarly nuanced and reformative approach from the Indianjudiciary. Courts in other democracies, have consistently recognised the right of students to express theirreligious beliefs through attire, emphasising the importance of accommodating religious diversity withinpublic institutions. To mention a few, the Swiss Supreme Court allowed a Muslim father to remove hisdaughterfrommandatoryswimmingclassesofschoolsongroundof“strongfaith”.TheHighCourtofEnglandandWalesintheUnited KingdompermittedaSikhgirlto weara“kara”(bangle)toschoolbecause it was an expression of her Sikh faith and “any rejection of her freedom of religion would be blatantdiscrimination”.
Comparative jurisprudence offers invaluable insights into the perils of judicial overreach. In theUnitedStates,the Tinker v. Des Moinesdecision affirmed that students “do not shed their constitutional rights to freedomof speech orexpression at the schoolhouse gate.” Similarly, the Constitutional Court of South Africa, inMECforEducation:KwaZulu-Natal&Orsvs.Pillay,upheldtherightofstudentstoexpresstheirreligiousidentitythrough attire, recognising the importance of religious autonomy in a pluralistic society.
These precedentsshowthe fundamentalprinciplethatreligiouspracticesarenotforcourtstodetermine butarethe purviewof the religious community itself. The current trend of Indian courts to impose their interpretation of religioustenets, under the guise of the ERP test, stands in stark contrast to these global benchmarks, raising questionsabout the judiciary’s respect for religious plurality and individual choice. It is imperative that Indian courtsdraw upon these international legal standards to protect the rights of Muslim women, thereby advancing aninclusive and equitable educational environment that respects and upholds the constitutional values ofsecularismandreligiouspluralism.
CourtsinControversy:StrikingtheBalanceBetweenLawandReligion
The constitutional validity of denying Muslim women access to education for wearing the hijab must becritically examined in light of the principles laid down in both Indian and international jurisprudence. TheKeralaHighCourt,inAmnahBintBasheervs.CentralBoardofSecondaryEducation,explicitlyrecognisedthe hijab as an essential religious practice under Islamic law, relying on Quranic injunctions and Hadith toaffirm that “it is afarz to cover the head andwear the long-sleeved dress”, rendering anycontradictory actionsas haram. The court brought out that while diverse interpretations exist, the fundamental right to religiousfreedom, safeguarded by the Constitution, must be upheld in preference to a purely religious verdict. Thebalancing approach adopted by the Kerala High Court, allowing for minimal intrusion into religious practicesduringexaminationsbyemployingfemaleinvigilators,standsasasound applicationofproportionality.
The constitutionality of such denials must also be scrutinized under the right to privacy as affirmed by theSupreme Court in the landmark judgmentofK.S.Puttaswamy vs. Union of India, where privacy was enshrinedas a fundamental right encompassing “spatial control, decisional autonomy, and informational control.” Thecourt specifically highlighted that decisional autonomy includes “intimate personal choices such as thosegoverning faith or modes of dress.”
This interpretation places the right to wear the hijab firmly within theambitofprivacyrights,demandingthatanystateactionlimitingthisrightmustsatisfythethree-prongedtest of legality, legitimate state aim, and proportionality. The forced prevention of girls from entering educationalinstitutionswithoutnoticeorlegaljustificationisnotonlyunconstitutionalbutalsostandsinstarkcontrasttothefoundationalidealsofunityindiversityandfraternitythatunderpintheIndianConstitution.Asinternational jurisprudence, including decisions from the European Court of Human Rights, has consistentlyupheld,anyrestrictiononreligiousexpressionineducationalsettingsmustbenarrowlytailored andproportionate to the intended objective, failing which, such actions amount to a grave violation of fundamentalhumanrights.
JudicialOverreachinDeterminingReligiousEssentiality
The judiciary’s encroachment into religious domains, particularly through the Essential Religious Practices(ERP) test, raises profound questions about the extent of judicial authority. The Supreme Court of India’sapplication of the ERP test, as established in Shirur Mutt, places the courts in the precarious position ofdeciphering religious doctrines – an inherently subjective and theological exercise. The Constitution of India,while safeguarding the freedom of religion under Articles 25 and 26, did not envisage a scenario where thejudiciary would assume the role of religious arbiter.
As the U.S. Supreme Court wisely articulated in Engel v.Vitale,“Religion is too personal, too sacred, too holy to permit its unhallowed perversion by acivilmagistrate.” The decision to deem what constitutes an essential religious practice should rest solely with the adherentsandreligiousauthoritiesofthatfaith,notwithsecularcourtsthatlacktheologicalcompetence.
TheMythofIncompatibility:CanEducationandReligiousFreedomCoexist?
The controversy surrounding the Hijab is not a matter of religious essentiality but rather a question ofconstitutional rights and individualchoice. The framing of this issue as one of “constitutionalsecularism,” asseen in recent judicial pronouncements, is a reductionist approach that fails to account for the nuancedintersection of personal liberty and religious expression.Courts, by their very nature, are ill-equipped tonavigate the complex theological terrain that defines religious practices. By what authority does the statedictatethereligiouspracticesofitscitizens?TheConstitution,initsspirit,shunssuchoverreachandenvisionsaharmoniouscoexistenceofindividualrightsandreligiousfreedoms.
The Constitution, as interpreted by the framers, intended for religion to be a personal matter, free from stateinterference. The insistence on applying the ERP test to the Hijab is not only jurisprudentially troubling butalso reflects a misunderstanding of the Constitution’s intent. This issue should not be viewed through thenarrow lens of religious conformity but as a broader question of respecting individual rights in a diversesociety. The true question is not whether the Hijab is essential to Islam but whether the state has the right toinfringeupon an individual’schoicetowearit.
In the ConstituentAssembly, Tajamul Husainproposed anexplanationtoArticle 25, suggesting thatindividuals should be prohibited from displaying religious symbols on their bodies. This proposal, however, was rejected in recognition of India’s pluralistic ethos and the fundamental right to identity assertion within adiverse society. As Ms. Farrah Ahmed from Melbourne Law School aptly questioned, “It is very puzzling foranybody to say that wearing a hijab or wearing a headscarf is inconsistent with your freedom.”This statementresonates with the principle that the choice to wear the Hijab is anexercise of personal liberty, one thatshouldbe respected and protected by the state, not scrutinised or curtailed.
To enforce the removal of religioussymbols is not merely an exclusionary act against a particular community but a direct encroachment on theautonomy and dignity of individuals. The Constitution embodies a liberty model where personal choices arerespected and protected, as opposed to a control model that seeks to impose uniformity through arbitrary stateintervention. The judicial overreach into determining what constitutes an “essential religious practice” hasresulted in a narrowing of the freedoms guaranteed under our Constitution, fundamentally underminingindividualautonomy.
As students and practitioners of law, we are instructed that the Constitution guarantees the freedom to practiceone’s religion, not solely those practices deemed “essential” by an external arbiter. The selective applicationof the essentiality doctrine, whereby judges trained in secular jurisprudence rather than theology assume the authority to define religious practices, is deeply problematic. The rationale that Hijab, purdah, or veil do notconstituteessentialpracticessimplybecausetheywerenotobservedattheinceptionofthereligionreflectsagross misinterpretation of religious freedom.
Furthermore, the judicial assertion that a practice must beconsidered essential only if its omission invites religious sanction is inherently flawed. If such a standard wereapplied consistently, then practices like homosexuality and adultery – condemned in nearly all religioustexts – should remain criminalised, yet they have been decriminalised. The role of the judiciary is not toreformreligiousdoctrinesbuttoupholdtheruleoflaw.Therelationshipbetweenanindividualandtheirfaithis a private matter, outside the purview of secular adjudication. Is it constitutionally sound to force children tochoose between their right to practise religion and their right to education, thereby imposing a form ofdiscriminationundertheguiseofpromotingequalityanduniformity?
JusticeSudhanshuDhulia,inhisdissentingopinion,emphasisedthattheessentialreligiouspracticedoctrine was not pertinent to the dispute at hand, and that the Karnataka High Court had erred in its application. Theprimary concern, he asserted, should be the education of the girl child: “Are we enhancing her life prospectsthrough these restrictions?” Is the wearing of a Hijab genuinely a threat to India’s unity and integrity? DushyantDave compellingly argued that if a Muslim woman sincerely believes that wearing a Hijab is integral to herreligiouspractice,nostateauthorityorjudicial bodyhasthejurisdictiontodecideotherwise.
UpholdingConstitutionalValues:TheFutureofReligiousFreedominIndia
Justice J.S. Verma’s observation that “The Court is supreme, but not infallible” reminds us of the right todissent from judicial decisions. As the Supreme Court has stayed the Mumbai College’s ban on hijab and otherreligious symbols, there is renewed hope that justice will be served in light of the compelling argumentspresented. The Court’s skepticism about the college’s rationale, as expressed by Justices Sanjiv Khanna andSanjay Kumar, puts light on a critical examination of the ban’s implications on individual freedoms. JusticeKhanna’s remarks – “How are you empowering women by telling them what to wear?” – and Justice Kumar’sprobing question – “Will it not be up to the girl what she wants to wear?”—highlight a fundamental concernfor upholdingconstitutional rights andpersonalautonomy.
These observations reflect a judicial awareness ofthe nuancedinterplaybetweenreligiousexpressionandinstitutionalpolicies. Thestayorderandtheforthcoming review of the ban provide an opportunity for the Court to reaffirm constitutional protections underArticles 19(1)(a) and 25, ensuring that personal freedoms are not unduly compromised. As the Supreme Courtprepares to revisit this issue in November, the legal community and affected individuals await a resolutionthat aligns with the principles of secularism, non-discrimination, and respect for individual rights. Theupcoming hearings are anticipated with optimism, as they hold the promise of upholding fundamentalfreedomsandreinforcingtheconstitutional valuesthat arevital toourdemocracy.
[AmmarahIshaq and Mohammed Salman Siddiqui are third-year law students at the University College of Law. They possess a keen dedication and passion towards researching and writing on legal and societal issues. Their writings are prominently featured in India’s leading law portals, including Live Law, Bar and Bench, and The Leaflet, in addition to their contributions to Radiance, The Companion and Aura E-Magazine.]