The earliest judgment as I can see is Spiers v Warrington Corporation [1954] 1 QB 61. A Muslim student wished to wear a Hijab a full Islamic dress, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion. The appeal court ultimately upheld School’s policy.
Chief Justice Lord Goddard CJ upheld the School’s policy noting that the headmistress did not suspend this child at all. She was always perfectly willing to take her in; all that she wanted was that she should be properly dressed. Suspending is refusing to admit to the school; in this case the headmistress was perfectly willing to admit the girl but was insisting that she be properly dressed.
The judgment in is Spiers v Warrington Corporation was quoted with approval in Shabina Begum case, also known as Hijab case R. (SB) v. Governors of Denbigh High School, (2007) 1 AC 100). A young Muslim girl of Bangladeshi origin had commenced judicial review proceedings against the head teacher and governors of a high school that did not permit her to attend school in a Hijab. She claimed that the school’s decision violated her convention rights to manifest her religion in practice and observance, and her right to education.
Views of Lord Bingham “It is therefore necessary to consider the proportionality of the school’s interference with the respondent’s right to manifest her religious belief by wearing the jilbab to the school. …The court there recognises the high importance of the rights protected by article 9; the need in some situations to restrict freedom to manifest religious belief; the value of religious harmony and tolerance between opposing or competing groups and of pluralism and broad-mindedness; the need for compromise and balance; the role of the state in deciding what is necessary to protect the rights and freedoms of others; the variation of practice and tradition among member states; and the permissibility in some contexts of restricting the wearing of religious dress.…..Different schools have different uniform policies, no doubt influenced by the composition of their pupil bodies and a range of other matters. Each school has to decide what uniform, if any, will best serve its wider educational purposes. The school did not reject the respondent’s request out of hand: it took advice, and was told that its existing policy con-formed with the requirements of mainstream Muslim opinion. On the agreed facts, the school was in my opinion fully justified in acting as it did. It had taken immense pains to devise a uniform policy which respected Muslim beliefs but did so in an inclusive, unthreatening and uncompetitive way. The rules laid down were as far from being mindless as uniform rules could ever be. The school had enjoyed a period of harmony and success to which the uniform policy was thought to contribute. On further enquiry it still appeared that the rules were acceptable to mainstream Muslim opinion. It was feared that ac-ceding to the respondent’s request would or might have significant adverse repercussions. It would in my opinion be irresponsible of any court, lacking the experience, background and detailed knowledge of the head teacher, staff and governors, to overrule their judgment on a matter as sensitive as this. The power of decision has been given to them for the compelling reason that they are best placed to exercise it, and I see no reason to disturb their decision.”
Lord Nicholls partially dealt with Lord Bingham’s two fold reasons (1) the school’s refusal to allow Shabina Begum to wear a jilbab at school did not interfere with her article 9 right to manifest her religion and, even if it did, (2) the school’s decision was objectively justified. He agreed with the second reason. He observed “Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”In my opinion a domestic court should accept the decision of Parliament to allow individual schools to make their own decisions about uniforms.”
Thus speaking, Lord Nicholls agreed with Lord Bennett J that there was no infringement of Shabina’s rights under article 9.”
Lord Scott categorically said that he was unable to accept that the respondent, Shabina Begum, was subjected to an unlawful exclusion from school or that her school’s refusal to allow her to attend school dressed in a jilbab denied her “the right to education”.
Baroness Hales views were more pragmatic and realistic. He observed “Their (school) task is to educate the young from all the many and diverse families and communities in this country in accordance with the national curriculum. Their task is to help all of their pupils achieve their full potential. This includes growing up to play whatever part they choose in the society in which they are living. The school’s task is also to promote the ability of people of diverse races, religions and cultures to live together in harmony. Fostering a sense of community and cohesion within the school is an important part of that. A uniform dress code can play its role in smoothing over ethnic, religious and social divisions. But it does more than that. Like it or not, this is a society committed, in principle and in law, to equal freedom for men and women to choose how they will lead their lives within the law. Young girls from ethnic, cultural or religious minorities growing up here face particularly difficult choices: how far to adopt or to distance themselves from the dominant culture. A good school will enable and support them.”
In his article “Rights of Women and Muslim Societies”, (7 Socio-Legal Rev. 44 (2011) Asghar Ali Engineer, a prolific writer and activist categorically says that the Quran does not prescribe the hijab. He observes; “Another example is that of the veil or purdah or burqa, frequently in the news today. The Qur’an does not prescribe the hijab A veil. for women. In fact, the word hijab does not oc-cur in Qur’an for veiling the face of an ordinary Muslim woman. It was only meant for the wives of the Prophet; the Bedouin Arabs would talk freely with the Prophet’s wives after dinner, not being acquainted with the pertinent cultural norms. The Prophet did not like it and hence it was revealed that men should leave after dinner; if they talk with the wives of the Prophet, they should talk from behind the curtain, hijab. Seen in proper context, it is therefore clear that a reference has only been made to a curtain and not to a face veil. For other women, the word hijab or burqa does not occur in the Qur’an at all. The verses which are often quoted in support of veiling women with the help of hadith have, in reality, nothing to do with that practice. One verse pertains to the public display of zeenah [Adornments.] and the other to eve-teasing in the mornings when Muslim women went out for re-lieving themselves, there being no toilets at home.”
In his article “Notes and Comments: Role of Some Indian Muslim Jurists in Development and Reform of Muslim Personal Law in India”, 34 JILI (1992) 563 Mr. Furqan Ahmad, Assistant Re-search Professor, Indian Law Institute quotes Maulana Mohammad Shibli Nomani, Islamic scholar from the Indian subcontinent during the British Raj as follows;
”Maulana was in favour of purdah but he was not as rigid as his contemporary Hanafi scholars. He suggested that the problems should be taken into account in the background of the in-junctions to purdah. According to him, the main objective of purdah is to save the society from corruption and if it is certain that unveiling would not adversely affect the society and the peaceful norms of the state will in no way be disturbed by the presence of male and fe-male at the same place, purdah is not imperative. He explains the concept of purdah as: One, to hide satar and the other to practice hijab (to cover one’s face). Maulana goes into the de-tails of satar by stating that looking at the whole body of a man is permissible for a man ex-cept the region from navel to knee and the same applies to one woman vis-avis another. A man is entitled to look at the whole body of his wife. He is also permitted to see the body of those women who come under prohibited relationship, but only face, head, breast, calves, and both arms. However, it is to be done without any sexual desire or intention. The back and belly are not allowed to be looked at. Only the face and palms of a strange woman can be looked at but without sexual overtones and if there is fear of sexual attraction, then such an exposure is prohibited unless expressly allowed in Sharia due to dire need. Judges and witnesses are allowed to look at the face for giving judgment and evidence respectively. The doctor is similarly allowed to look at the locations of disease. These professionals are allowed even if there is a danger of sexual attraction. Maulana, after quoting various sources of Islamic jurisprudence, summarised his verdict re-lating to purdah as follows: Thus the details show that ‘satar’ is mandatory. The other thing i.e. hijab (veil) which is gen-erally prevalent today in the dignified families is that a woman shows no part of her body to stranger. This was imperative for the consorts of Prophet but not compulsorily enforced for other Muslim women”
In M. Ajmal Khan vs The Election Commission of India, 2006 SCC OnLine Mad 794, the Madras High Court (Chief Justice A.P. Shah and Justice K. Chandru) was dealing with the challenge to publication of voters list with photos of Muslim woman. The challenge based on the ground that the usage of photographs in the electoral rolls of eligible voters and in particular the photographs of Muslim Gosha Women will easily find its way into the hands of those persons whose identity is not known, which is opposed to religious beliefs, tenets of Koran and it will cause irreparable loss, damage, mental agony to the entire muslim community at large.
The challenge was negatived by the Court. The following observations are relevant. ‘
“13. The Canadian writers Syed Mumtaz Ali and Rabia Mills in their essay Social Degradation of Women – a Crime and a Libel on Islam explain: “One must realize and appreciate the fact that the commandment in the Qur’an in Chapter 33, Verse 53, with respect to the Hijab, applies only to the “Mothers of the believers” (the wives of the Holy Prophet, p.b.u.h.) whereas the wording of the Qur’an in Chapter 33 Verse 55, applies to all Muslim women in general. No screen or Hijab (Purdah) is mentioned in this verse − it prescribes only a veil to cover the bosom and modesty in dress. Hence the unlaw-fulness of the practice of the Indian-style system of Purdah (full face veiling). Under this sys-tem, the Hijab is not only imposed upon all Muslim women, but it is also quite often forced upon them in an obligatory and mandatory fashion. Even the literal reading/translation of this Quranic verse does not support the assertion that the Hijab is recommended for all Muslim women. The Hijab/screen was a special feature of honour for the Prophet’s p.b.u.h. wives and it was introduced only about five or six years before his death.” In the English translation of Koran by Muhammad Asad in Note 37 states “We may safely assume that the meaning of illa ma zahara minha is much wider, and that the deliberate vagueness of this phrase is meant to allow for all the time-bound changes that are necessary for man’s moral and social growth.” In the Article “The Question of Hijab: Suppression or Liberation” published by The Institute of Islamic Information and Education (III & E) and reproduced in electronic form by Islamic Academy for Scientific Research the author states that the question of Hijab (Purdah) for Muslim women has been a controversy for centuries and will probably continue for many more. Some learned people do not consider the subject open to discussion and consider that covering the face is required, while a majority are of the opinion that it is not required. A middle line position is taken by some who claim that the instructions are vague and open to individual discretion depending on the situation. The wives of the Prophet(s) were required to cover their faces so that men would not think of them in sexual terms since they were the “Mothers of the Believers” but this requirement was not extended to other women.
In 1992 Justice Eusoff of Malaysian High Court delivered a judgment ruling that the freedom of religion guaranteed under Article 11(1) of the Malaysian Constitution was not absolute as Article 11(5) did not authorise any act contrary to any general law relating to public order, public health or morality. The prohibition against wearing attire that covered the face did not affect the appellant’s constitutional right to profess and practice her religion. This decision of the Malaysian High Court was confirmed by the Malaysian Supreme Court in 1994. It is, thus, seen from the reported material that there is almost unanimity amongst Muslim scholars that purdah is not essential but covering of head by scarf is obligatory.
Even assuming that the Purdah or Gosha is an essential ingredient of the Muslim religion, Article 25 itself makes it clear that this right is subject to public order, morality or health and also to the other provisions of Part III of the Constitution.
In view of the foregoing discussion, we have no hesitation in holding that the direction of the Commission is not violative of Article 25 of the Constitution. We also do not find any substance in the complaint of violation of right to privacy.”
In Leyla Sahin v. Turkey, https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-70956%22 the European Court of Human Rights upheld a ban on headscarf by the University of Istanbul does not of Sahin’s freedom of thought, conscience, and religion under Convention Article 9. The Court also stated that “the University of Istanbul’s regulations imposing restrictions on the wearing of Islamic headscarves and the measures taken to implement them were justified in principle and proportionate to the aims pursued and therefore, could be regarded as “necessary in a democratic society”.
Recently, the Kerala High Court in Fathima Thsneem and another vs The State of Kerala and others Writ Petition 1940 of 2018 decided on 4 December 20118 considered similar issue. Justice A. Muhamed Mustaque stressed the need for balance. ‘‘One has the liberty to follow his own notions and convictions in the matter of dress code. At the same time, when such a right is claimed against a private entity which is also having equal Fundamental Right to manage and administer an institution, the Court has to balance the competing Fundamental Rights and decide the issue’’, the court observed. Proceeding further;
Fundamental Rights are either in nature of the absolute right or relative right. Absolute rights are non-negotiable. Relative rights are always subject to the restriction imposed by the Constitution. The religious rights are relative rights (see Art 25 of the Constitution). In the absence of any restriction placed by the State, the Court need not examine the matter in the light of restriction under the Constitution. The Court will, therefore, have to examine the matter on a totally different angle on the conflict between Fundamental Rights available to both. The Court has to examine the prioritization of competing Fundamental Rights in a larger legal principle on which legal system function in the absence of any Constitutional guidance in this regard. The Constitution itself envisage a Society where rights are balanced to subserve the larger interest of the Society.
In every human relationship, there evolves an interest. In the competing rights, if not resolved through the legislation, it is a matter for judicial adjudication. The Court, therefore, has to balance those rights to uphold the interest of the dominant rather than the subservient interest. The dominant interest represents the larger interest and the subservient interest represents only individual interest. If the dominant interest is not allowed to prevail, subservient interest would march over the dominant interest resulting in chaos. The dominant interest, in this case, is the management of the institution. If the management is not given free hand to administer and manage the institution that would denude their fundamental right. The Constitutional right is not intended to protect one right by annihilating the rights of others. The Constitution, in fact, intends to assimilate those plural interests within its scheme without any conflict or in priority. However, when there is a priority of interest, individual interest must yield to the larger interest. That is the essence of liberty.
9…It is for the institution to decide whether the petitioners can be permitted to attend the classes with the headscarf and full sleeve shirt. It is purely within the domain of the institution to decide on the same. The Court cannot even direct the institution to consider such a request. Therefore, the writ petition must fail. Accordingly, the writ petition is dismissed. If the petitioners approach the institution for Transfer Certificate, the school authority shall issue Transfer Certificate without making any remarks. No doubt, if the petitioners are willing to abide by the school dress code, they shall be permitted to continue in the same school. “
Conclusion. The legal position is well settled. An educational institution is aimed at imparting education within the constitutional parameters. The preamble itself considers India as the Secular democratic republic. The fundamental aim of a student is to achieve the noble ideals of the Constitution drafted by great souls. Educational institution is not a place to display one’s religious beliefs. The recent controversy over Hijab and the arguments for and against it is purely political aimed at disturbing the harmony among the students’ fraternity in particular and the citizenry in general. Such attempts must be eschewed to achieve the true meaning of education.
S. Basavaraj, Senior Advocate, Bengaluru. raj@rajdakshalegal
Daksha Legal 