Decisions restricting the hijab in Europe and the UK pay attention to secular reasons that might justify restrictions on all religious clothing.
As the Karnataka High Court considers whether women should be allowed into class with hijabs, it is instructive to place the matter in a global context of judicial decisions on wearing religious symbols.
From a survey of international judicial reasoning on the issue, there emerges no support to ban hijabs in colleges where students are mature. Secularism demands that restrictions are justified if they apply to all religious symbols to maintain neutrality. That is not the case in Karnataka.
Overall, courts around the world agree that curbing religious freedom can be justified only by discharging a very high burden such as the state’s obligation of neutrality, impinging upon the fundamental rights of others, and what is considered by a court to be reasonable in a democratic and secular society.
The post-9/11 world
Rulings casting suspicion on wearing symbols must also be contextualised. They arise largely in a post-9/11 world of growing Islamophobia and communal tensions in the West that came with rising immigration from war-torn countries. Sometimes, the peculiar Christian history of countries finds favour in decisions.
We must therefore be attentive to India’s multicultural context and Constitution to resist easy transplanting global judicial conclusions.
The question before the Karnataka High Court is about the hijab (the Islamic headscarf), which unlike niqabs or burkhas, do not conceal the wearer’s face.
Decisions restricting the hijab in Europe and the UK pay attention to secular reasons that might justify restrictions on all religious clothing. In the UK known as R Begum v. Denbigh High School, a Muslim girl in 2006 lost her case of wearing the jilbab (full-length clothing) to school in a predominantly Muslim area, governed predominantly by Muslims, and having 79% Muslim students.
The House of Lords reasoned, first, that the school took “immense pains to devise a uniform policy which respected Muslim beliefs” by consulting the community and parents. This included deviations from orthodox British culture: allowing shalwar kameez as well as headscarves.
Secondly, the school wished for uncompetitive relations between Muslim girls about how Muslim they were. Thirdly, the school prohibited clothing that was prone to tripping and falling.
The court held that the girl’s right to freedom of religion was reasonably accommodated by the uniform policy and the ruling was specific to that school, not to Islamic dress in general. Begum’s case shows that rising immigration from Bangladesh, India and other countries required the school to accommodate religious and cultural considerations to balance uniformity and minority rights in British society.
In India, where religious symbols such as sacred threads, teekas on the forehead, turbans, crosses, and the hijab are visible in public spaces, sending out a message of uniformity would require banning of all these. This was the logic in some European decisions.
In Dahlab v Switzerland in 2001, the European Court of Human Rights or ECtHR upheld a hijab ban on primary school teachers in government schools by labeling head scarves to be a “powerful external symbol” that might have a “proselytising effect” on very young minds.
Contrast this with Lautsi v Italy in 2006 dealing with display of crucifixes in all state-school classrooms. The ECtHR held that very visible religious symbols do not lead to indoctrination of young minds, thus rejecting the claim for banning crucifixes. Similar facts in the predominantly catholic German province of Bavaria led to the same conclusion.
Such reasoning conflicts with Dahlab where mere wearing of the hijab was held to have a proselytising effect but display of crucifixes did not.
In Sahin v Turkey too, the court in 2005 upheld the ban on headscarves in educational institutions. This restriction on religious attire was considered necessary to maintain secularism in Turkey.
Context is paramount in understanding these three cases. Dahlab’s case focused on secular reasons i.e., teachers appearing neutral to children in a context of strict separation between Church and State. Maintaining neutrality by primary school teachers was viewed as essential.
In the crucifix cases, however, the peculiar Catholic context of Italy and Bavaria seems to influence the court. The decisions therefore do not reflect a wide consideration of secular reasons. In Sahin’s case in Turkey, the insistence on secularism by regimes that preceded the current Erdogan dispensation was seen as necessary, given founding father Mustafa Kemal Attaturk’s strong anti-religious and European vision of secularism that is entrenched in the constitution.
Being a Muslim-majority country, Turkish governments took several measures to prevent the dominant religion from usurping public space. If India went the Turkish way, then the state would have to specifically ban Hindu symbols from public spaces.
A case from Canada
The cases in Karnataka can be distinguished from these three as it involves rights of mature pre-university students as opposed to teachers or younger children. Unlike Switzerland, Italy, Bavaria, and Turkey, India is a highly multicultural society. A case from a multicultural country like Canada is therefore comparable.
In Multani v CSMB in 2006, the Canadian Supreme Court protected the right of a Sikh student to carry a kirpan, or ceremonial dagger, to school. Observing that “an absolute prohibition on kirpan would stifle the promotion of multiculturalism, diversity and the development of an educational culture respectful of the rights of the others”, the court held that prohibiting it could not be demonstrably justified in a free and democratic society.
This approach of reasonable accommodation is more instructive for respecting inherent multiculturalism in India.
Recent cases also lean towards the view that everyone has a right to manifest their religion subject only to secular restrictions. In Wabe & MH Muller Handel, the Court of Justice of the European Union held that employers would be justified in disciplining employees for wearing the hijab if it was based on a non-discriminatory policy that applies to all religions and was justified by a need for the employer to maintain neutrality.
Questions remain about whether the decision prevented discrimination as it claims, since the employer only prohibited large and conspicuous religious signs that would indirectly include headscarves.
In Eweida & Chaplin in 2013, the European Court of Human Rights held that British Airways could not stop an employee from wearing a small cross as it did not interfere with her professional duties. The government could however prohibit a health-worker from wearing the cross for health and safety reasons as well as maintaining religious neutrality essential for hospitals.
Such secular reasons rightly place a high burden on anyone seeking to prohibit manifestation of religious beliefs. Banning of symbols in colleges with mature students should therefore be saddled with such a burden. Hijabs do not interfere with education in any way, especially in a society where several others wear such symbols. Banning symbols in colleges would infantilise our students and stunt their ability to hold and justify beliefs.
But what about public order? The Karnataka government’s recent order prohibits uniforms that violate equality, integrity and law and order. Does wearing a hijab violate these?
In Yaker v France in 2018, the UN Human Rights Committee rejected a blanket ban on wearing the niqab (full face veil) in public places on grounds of public safety. It infringed upon the woman’s right to manifest her religion. In Multani, the argument that a kirpan posed a security threat inside schools was also rejected.
If courts rejected public order arguments in cases of niqab and a replica sword, then a ban on benign headscarves would seem far-fetched.
Pritam Baruah is the Dean, and Satya Prasoon an Assistant Professor at the School of Law, BML Munjal University.