Case Briefs

In continuation to analyse a few cases wherein the issue of “headscarf” was touched upon by the Courts, today let’s see what the Bombay High Court said on the wearing of “headscarf” by Muslim girl students.


Bombay High Court in Fathema Hussain Sayed v. Bharat Education Society, 2002 SCC OnLine Bom 713 dealt with the issue wherein a minor student was asked by the Principal of the school to not attend the class if she wore the head scarf.

As per Fathema the said headscarf did not violate the dress code or the discipline of the school, hence principal’s direction was violative of her fundamental right of freedom of conscience and profession, propagating and practising Islam religion.

The Division Bench of R.M. Lodha and D.B. Bhosale, JJ. firstly, the Court noted that the petitioner for the self-same relief had earlier withdrawn the petition and the same was dismissed by this Court, and it was clear from the order that neither liberty to approach the Court again was sought nor granted.

Bombay High Court in view of the said Order had observed that, that neither liberty to approach the Court again was sought nor granted. It was against public policy to permit a litigant to approach the Court again and again once the matter had been withdrawn by him unconditionally.

Though the Bench added that, even if Court assumed that the minor may be permitted to file a second petition, High Court found it difficult to accept the submission of the counsel that by not permitting the petitioner to wear head scarf, the fundamental right of the petitioner under Article 25 would be violated.

Proceeding further, the Court referred to Article 25 of the Constitution, which read as follows:

“25. Freedom of conscience and free profession, practice and propagation of religion.— (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—

(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Explanation I.— The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.

Explanation II.— In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jains or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.”

Elaborating further on the matter, the Division Bench stated that, by asking the student to maintain the dress code prescribed by school, how can it be said that it was a violation of her fundamental right of freedom of conscience and free profession, practice and propagation of religion?

While referring to the restrictions imposed in Article 25, Court added that there did not seem to be such established practice and profession of the Islam religion from covering their heads by the girls studying in all girls school.

The Counsel for the petitioner had placed reliance on verse 31 of Chapter 24-64 of Holy Quran (Quran-E-Majid).

The very significant observation of the High Court, in this case, was that:

“A girl student not wearing the head scarf or head covering studying in exclusive girls section cannot be said to in any manner acting inconsistent with the aforesaid verse 31 or violating any injunction provided in Holy Quran. It is not an obligatory overt act enjoined by Muslim religion that a girl studying in all girl section must wear head-covering. The essence of Muslim religion or Islam cannot be said to have been interfered with by directing petitioner not to wear head-scarf in the school.” 

Bombay High Court did not find any merit in the contention with regard to the direction of the principal being violative of Article 25 of the Constitution of India.


Also Read


Hijab Case | When Karnataka High Court temporarily restrained students from wearing hijab, religious flags, saffron shawls, etc.: Read Court’s interim order || A Recap

 

To Wear or Not to Wear? Precedents on dilemma of wearing ‘Headscarf’ from the Kerala High Court

Is the Bhinder case relevant in Hijab ban row? Canadian SC’s decision in Rule conflicting with religious tenet of an employee

 

Case BriefsForeign Courts

As the proceedings in the Hijab Case are still going on, here we try and look back at one of the decisions from a foreign Court, which addressed the issue with regard to right to practice religion.

In today’s post we look at a case from Canada Supreme Court from the year 1985.

Remember what Canada Supreme Court ruled out in K.S. Bhinder v. Canadian National Railway Company, 1985 SCC OnLine Can SC 76, Case?


In this case, a work rule was introduced, as per which all the employees had to wear a hard hat at a particular work site, but Bhinder a Sikh employee refused to comply with the said rule because his religion did not allow the wearing of headgear other than the turban.

Due to the above said, Bhinder’s employment was ceased but the Canadian Human Rights Tribunal found that the said rule was discriminatory in practice and ordered reinstatement and compensation for loss of salary. Though when the matter was appealed, the decision was set aside and referred back for disposition on the basis that the work rule was not a discriminatory practice.

As per Section 14 of the Canadian Human Rights Act,

“It is not a discriminatory practice:

(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement;”

In Court’s opinion, the Tribunal did not err in law in holding the bona fide occupational requirement of Section 14 (a) of the Act.

“The wearing of safety helmets by Sikhs, a requirement which has a prima facie discriminatory effect, is a matter governed by the Canadian Human Rights Act, not the Canada Labour Code, where the requirements of the two Acts conflict. Thus, even if the safety helmet policy is necessary under the Canada Labour Code and Regulations, it does not follow that the policy is ipso facto a bona fide occupational requirement for the purpose of the Canadian Human Rights Act.”

“With respect to the financial hardship of Canadian National in the event of an injury to Mr. Bhinder as a result of his not wearing a safety helmet, the Tribunal concluded the potential additional costs of an exemption from its safety helmet policy in favour of the complainant, and Sikhs in general, was de minimis and, therefore, did not constitute undue hardship.”

Further, it was noted that, the Tribunal found that the rule was useful, that it was reasonable in that it promoted safety by reducing the risk of injury and, specifically, that the risk faced by Bhinder in wearing a turban rather than a hard hat was increased, though by a very small amount. The only conclusion that can be drawn from the reasons for the decision is that, but for its special application to Bhinder, the hard hat rule was found to be a bona fide occupational requirement. Indeed, it would be difficult on the facts to reach any other conclusion.

The conclusion in the said case was that the safety helmet policy of the employer was not a bona fide occupational requirement in respect of its application to Mr Bhinder.

“The Tribunal found that the rule was useful, that it was reasonable in that it promoted safety by reducing the risk of injury and, specifically, that the risk faced by Bhinder in wearing a turban rather than a hard hat was increased, though by a very small amount. The only conclusion that can be drawn from the reasons for decision is that, but for its special application to Bhinder, the hard hat rule was found to be a bona fide occupational requirement. Indeed, it would be difficult on the facts to reach any other conclusion.”

Supreme Court of Canada found error in law for the Tribunal, having found that the bona fide occupational requirement existed, to exempt the appellant from its scope.

What the UN Human Rights Committee held in the case?

Whether the imposition of a ‘hard hat’ policy for reasons of workplace safety was incompatible with Article 18 of the International Covenant on Civil and Political Rights, where particular religious groups were unable to comply with the requirement?

While holding that, the facts of the case did not disclose a violation of any provision of the International Covenant on Civil and Political Rights, Committee noted that,

“If the requirement that a hard hat be worn is regarded as raising issues under article 18, then it is a limitation that is justified by reference to the grounds laid down in article 18, paragraph 3. If the requirement that a hard hat be worn is seen as a discrimination de facto against persons of the Sikh religion under article 26, then, applying criteria now well established in the jurisprudence of the Committee, the legislation requiring that workers in federal employment be protected from injury and electric shock by the wearing of hard hats is to be regarded as reasonable and directed towards objective purposes that are compatible with the Covenant.”

[KARNEL SINGH BHINDER v. CANADA, 23 October – 10 November 1989]


How the Kerala High Court had dealt with the wearing of ‘headscarf’ issue? Read below


To Wear or Not to Wear? Precedents on dilemma of wearing ‘Headscarf’ from the Kerala High Court

Legislation UpdatesStatutes/Bills/Ordinances

Governor of Madhya Pradesh promulgates the Madhya Pradesh Freedom of Religion Ordinance, 2020.

Purpose of this Ordinance

To provide freedom of religion by prohibiting conversion from one religion to another by misrepresentation, allurement, use of threat or force, undue influence, coercion, marriage or any fraudulent means and for the matters connected therewith.

Prohibition of unlawful conversion from one religion to other religions [Section 3]

The said ordinance states that no person shall:

  • Convert or attempt to convert, either directly or otherwise, any other person by use of misrepresentation, allurement, use of threat or force, undue influence, coercion or marriage or by any other fraudulent means;
  • Abet or conspire such conversion

Complaint against conversion of religion [Section 4]

No police officer shall inquire or investigate except upon written complaint of a person converted in contravention of Section 3 above or his parents or siblings or with leave of the Court by any other person who is related by blood, marriage or adoption, guardianship or custodianship as may be applicable.

Punishment for contravention of provisions of Section 3 [Section 5]

Imprisonment for a term not less than one year but which may extend to 5 years and the person shall also be liable to not less than Rs 25,000 fine.

There are certain proviso clauses mentioned under the said Section.

Marriages performed with the intent to convert a person shall be null and void [Section 6]

Marriages performed in contravention of Section 3 shall be deemed to be null and void.

Jurisdiction of Court [Section 7]

To declare the marriage null and void, the petition shall be presented by any person mentioned in Section 4 before the family court or where a family court is not established, the Court having jurisdiction of a family court within the local limits wherein, —

  • The marriage was solemnized or
  • Respondent at the time of the presentation resides or
  • Either parties to the marriage last resided together or
  • Where the petitioner is residing on the date of presentation of the petition.

Inheritance Right [Section 8]

Child born out of a marriage performed in contravention of Section 3 will be legitimate and succession to the property by such child shall be regulated according to the law governing inheritance of the father.

Right to Maintenance [Section 9]

Woman whose marriage is declared null and void under Section 7, children born out of that marriage shall be entitled to maintenance.

Declaration before conversion of religion [Section 10]

Any person who desires to convert shall submit a declaration to that effect 60 days prior to such conversion to the District Magistrate stating his desire to convert without any force, coercion, undue influence or allurement.

Section 11 states the punishment for violation of provisions of Ordinance by an institution or organization.

Burden of Proof [Section 12]

Burden of Proof as to whether a conversion was not effected through misrepresentation, allurement, use of force, threat of force, undue influence, coercion or by marriage or any other fraudulent means done for the purpose of carrying out conversion lies on the accused.

Investigation [Section 14]

No police officer below the rank of sub-inspector of police shall investigate any offence registered under the ordinance.


Also Read:

Prohibition of Unlawful Religious Conversion | Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 [Brief Explainer]

OP. ED.SCC Journal Section Archives

An incisive study concerning the religious freedom and right to conversion must necessarily begin with what is meant by religion and the contrariety of the perceptions as to the contours of the freedom, the extent of the restrictions on the right to change the religion.

There is no consensus as to the definition of religion. Etymologically, the expression religion is the combination of the two Latin expressions “re” meaning back and “ligare” meaning to bind.1 According to Webster’s Comprehensive Dictionary religion means a belief binding the spiritual nature of man to a super natural being as involving a feeling of dependence and responsibility, together with the feelings and practices which naturally flow from such a belief.

Swami Vivekananda said:

“religion as it is generally taught all over the world, is said to be based upon faith and belief and in most cases consists only of different sects of theories and that is the reason why we find all religions quarrelling with one another. These theories are again based upon faith and belief”2.

According to sage Aurobindo, the quest of man for God is the foundation for religion and its essential function is “the search for God and the finding of God”3.

Sir Julian Huxley, a renowned Scientist who synthesized philosophy with science and religion, said that “religion is the product of a certain type of interaction between man and his environment.”

All the three great religions of our country — Hinduism, Islam and Christianity — recognize the existence of God. To Christians their religion is a system of faith and worship, to Muslims Islam is a way of life encompassing all aspects of life. Hinduism defies comparison with other religions. It is sui generis. The Supreme Court said: “… Unlike other religions, the Hindu religion does not claim any one Prophet; it does not worship any one God; it does not subscribe any one dogma; it does not believe in any one philosophic concept; it does not follow any one set of religious rites or performances; in fact it does not appear to satisfy the narrow traditional features of any religion or creed. It may broadly be described as a way of life and nothing more”4. Although the common understanding about Hinduism is that it is founded on pantheism, it was recognized that the belief in the Supreme being is the foundation on which the entire edifice of Hinduism rests. In the words of Dr Radhakrishnan the main aim of the Hindu faith is to permit image worship as a means to the development of the religious spirit, to the recognition of the Supreme who has His temple in all beings5

To read the full text of the article, click here.


Note: This article was first published in Practical Lawyer 2003 PL WebJour 19. It has been reproduced with the kind permission of Eastern Book Company.

* Former C.J. of High Court of H.P. It is an abridged version of the Alladi Memorial Lecture held at Hyderabad on 22-3-2003

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: A Division bench comprising of Hrishikesh Roy, Ag. C.J and A.K. Jayasankaran Nambiar, J. while being seized of a civil writ petition challenging the practice of confessions by churches, held the same to be permissible as per rights guaranteed under Article 26 of the Constitution of India.

Petitioner, by virtue of his birth into a family that owes allegiance a respondent church, is a member of the said church and is obliged to adhere to the rituals and practices prescribed by it for attaining spiritual salvation. The sacrament of confession is one such ritual of the churches. The instant petition has been filed against apostolic churches (governed by Oriental Law) and Catholic churches (governed by Canon Law), averring that the practice of compulsory confession is unconstitutional, and making it a condition precedent for availing the spiritual and temporal rights by a Christian member of these churches violates their fundamental rights under Articles 21 and 25. It is contended that a member of the respondent churches, who does not turn up for confession lives in the apprehension of denial of spiritual and temporal needs. It is contended that the threat of undeclared sanction by church and isolation from society creates fear in the mind of members of these churches, thereby compelling a member to confess. Sin, being a private affair, a forced confession thereof amounts to deprivation of right to privacy and freedom guaranteed under Articles 21 and 25. In view of the aforesaid, petitioner prays for the continuance of his church membership without being forced to confess his sins.

The Court noted that Preamble to the Constitution and Article 25 grants liberty of thought, expression, belief, faith and worship and there is no compulsion on anyone to follow a particular mode of faith or worship. By expressing his disenchantment with the practice of confession, the petitioner had indicated that he did not want to adhere to the said ritual. However, he did not want to part with his membership since it would deprive him of certain privileges/ rights such as that of burial or baptism of his children. Though the court sympathized with the dilemma faced by the petitioner, it observed that his continuance as a member of the church was not on account of any compulsion. Just as he had a choice to embrace the religion or any facet of it, he has the choice to leave it for another. The court observed that Articles 25 and 26 guarantees freedom of religion and it is through the exercise of these very liberties that the petitioner had chosen to be and continued to be a member of the respondent church.

It was further held that respondent churches also had rights under Article 26 to manage their religious affairs and a declaration by Court that confession not be made a condition precedent, for the enjoyment of any spiritual and temporal rights as a member of the church, would amount to denial of the churches’ fundamental rights. The writ petition was dismissed observing that the petitioner’s predicament stemmed from his own uncertainty as to the path to be pursued for attaining spiritual salvation and such a dilemma could not be resolved through legal proceedings as there was no violation of any rights, whatsoever. [C.S. Chacko v. Union of India, 2018 SCC OnLine Ker 3497, decided on 02-08-2018]