The Indian Supreme Court and the Missing Connection between Faith and Dress

by | Sep 9, 2015

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About Ashleigh Pinto and Talweez Senghera

Ashleigh Pinto is a law student and research assistant at the University of Melbourne. She has recently interned at Human Rights Law Network - Delhi and the Victorian Equal Opportunity & Human Rights Commission.|Ashleigh Pinto is a law student and research assistant at the University of Melbourne. She has recently interned at Human Rights Law Network - Delhi and the Victorian Equal Opportunity & Human Rights Commission.

The Indian Supreme Court’s recent comments trivialising the importance of religious dress to faith have troubling implications. The Court has rejected a bid to quash guidelines prohibiting candidates from wearing certain forms of dress to the All India Pre-Medical/Pre-Dental Entrance Test. The Students Islamic Organisation of India (SIO) and three exam candidates had filed a petition claiming that the Central Board for Secondary Education’s (CBSE) guidelines violated their constitutional right to freedom of religion. Chief Justice Dattu dismissed the Public Interest Litigation as a ‘small issue’, prompting SIO to withdraw the petition.

In June 2015, the Supreme Court permitted the CBSE to reschedule the entrance exam in light of widespread claims of cheating. The CBSE then issued the guidelines in question to prevent exam candidates smuggling in technology that might assist them. The guidelines forbid them from taking a wide range of accessories into the exam, including scarves, hairpins and hair bands. Candidates must also wear ‘light clothes with half sleeves’. In effect, the guidelines require candidates to remove religious dress (such as the hijab) in order to sit the exam.

The SIO filed the Supreme Court petition after the Kerala High Court permitted two Muslim candidates to sit the exam in religious attire in a separate case.

The Chief Justice of the Supreme Court commented that ‘[i]f everyone wears a scarf… and claims it to be a religious practice…[c]an an examiner start inquiring into everybody’s faith?’ He further observed that ‘[f]aith is not connected to the clothes you wear’, it ‘won’t disappear if [the petitioners] appear for the exam without a scarf’.

These comments are premised on two assumptions: firstly, that alleviating the restriction is impracticable and, secondly, that religious dress is not an essential element of faith.

The fear of opening the floodgates to students seeking a religious exemption from the dress code is unfounded. Increased security measures, rather than an inquiry into faith, would help alleviate concerns of cheating. The Kerala High Court ordered a practical solution, requiring the candidates to arrive half an hour early for security purposes and remove the prohibited garments if any suspicions of cheating arose. Although the High Court restricted its remedy to the two candidates in question, the same solution could have been extended to all affected candidates. The Supreme Court petitioners were also willing to submit to security measures in order to sit the exam. Indeed, security measures such as frisking and screening are widely used in large public areas such as Indian train stations and shopping malls.

Article 25 of the Indian Constitution, which guarantees the freedom of religion, only preserves the right to a faith’s ‘essential’ practices’. It is for the Court to determine what these practices are. This is problematic, as the Court can effectively impose its own subjective judgement in making this determination. The Chief Justice implied that the hijab is not essential to Islam, despite the petitioners’ assertions that they would be unable to sit the exam with the guidelines in force.

The Kerala High Court’s ruling held that it would be unfair to enforce a dress code that prevents particular candidates from sitting the examination given India’s religious and cultural diversity. On its face, the requirement not to wear accessories and long-sleeved clothing does not target any religion. In practice, the requirement uniquely affects persons whose faith mandates certain forms of dress. The guidelines created an impasse: particular candidates would either have to compromise a tenet of their faith or lose the chance to gain entry into medicine or dentistry.

It is disappointing that the Supreme Court failed to recognise that these guidelines constitute an unreasonable restriction on constitutional rights. In stating that religious dress is not essential to faith, the Supreme Court has effectively prioritised administrative convenience over freedom of religion. If this attitude persists, the courts or legislature could foreseeably extend the prohibition on religious dress to areas of public life beyond a medical entrance exam, as has happened elsewhere.

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