Religion will have to stay indoors, and people have to accept that religion is a private matter and should not become an obstacle to the progress of the nation and its people.
By – Satya Muley
Religion is not defined anywhere in the constitution of India. Still, there have been too many controversies that India has seen over fundamental rights related to religious freedom. The jurisprudential concept of the wall between church and state has led us to the concept of secularism that is practiced in its various forms around the world. The Indian constitution is also secular, but protects religious freedom with reasonable restrictions.
The Hijab Judgment
The Supreme Court of Karnataka has dealt with the subject of Hijab in a very appropriate manner based on a law already enacted by the Supreme Court and based on the provisions of the Constitution of India.
The Supreme Court has concluded that the use of the hijab is not an essential religious practice of Islam and therefore there is no violation of any fundamental right if the wearing of the hijab is not allowed in educational institutions.
The High Court has also held that the prescription of a uniform is not contrary to any fundamental right and therefore the government order to enforce the uniform and prohibit the hijab is not contrary to Articles 14 and 15. Accordingly, the High Court has held that the actions of the educational institutions and the government are justified.
It is interesting to note that the same Supreme Court issued an interim order banning the use of religious clothing in educational institutions.
Historically, the judiciary has banned various religious practices, such as Tandava dance in public, as it violates reasonable restrictions on the constitutional fundamental right of freedom of religion under Article 25. Most recently, Triple Talaq was found to be in violation of with the constitutional rights of women and therefore declared illegal.
The Indian Constitution states and the Indian judiciary has time and again affirmed that freedom of religion is not an absolute fundamental right and is subject to public order, morality and health, among other reasonable restrictions.
The Hijab Verdict will certainly help to maintain some order and uniformity at the level of educational institutions. Had it been otherwise, it could have killed the concept of uniform in the educational institutions, as disciples of different religions would have come to the school in their religious garb.
Is it just about hijab?
Hijab’s supporters can challenge the Karnataka Supreme Court ruling in the Supreme Court. But the concerted effort by a section of society and activists to put a spin on the subject by linking the hijab row with the right to equality and freedom of expression is disturbing.
India has already witnessed difficult times with various aspects of personal laws being challenged in constitutional courts. Hindu personal laws, customs and traditions have been the most challenged and many historical practices have been declared illegal by the judiciary in the name of secularism and constitutional rights.
Time and again Indians are forced to deal with the question of whether it is constitution and nation first, or whether religion takes precedence. Debates based on many outdated religious and unconstitutional practices need to be put to rest once and for all if India is to make reasonable progress both socially and economically.
The Attack on the Constitution
As Indians, we all look to the Indian judiciary and constitution to ensure our fundamental rights and freedoms. In turn, there is a dangerous tendency to attack the Constitution and derive rights such as freedom of expression and religion from the Constitution itself.
The radical religious forces continue to dominate public behavior and influence democracy through voter influencing.
Time for Uniform Civil Code
The implementation of the Uniform Civil Code will silence all these chaotic forces. The rights and freedoms of women in all religions urgently need to be put on an equal footing with women of all religions and with those of men. The country will do better to devote its time, energy and resources to more productive subjects than to subjects arising from religious disputes.
The concepts of secularism and uniform Civil Code go well together, and the concept of equality also fits naturally with the Uniform Civil Code. Religion will have to stay indoors, and people have to accept that religion is a private matter and should not become an obstacle to the progress of the people and the nation. Let Indians be united in a unified way, by a unified civil code, and stop moving our constitutional courts over religious matters.
(The author is founder, Satya Muley & Co and a practicing lawyer in Bombay High Court and Supreme Court. The opinions expressed are those of the author. Financialexpress.com does not bear any responsibility for the opinions expressed in the article .)
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