india legal-history religion indian-constitutional-law
How would the first constitution of India interpret hijab in the classrooms?
<p>Recently, a court in Kerala, India, banned the hijab in classrooms, saying that the hijab is not an integral part of the religion of Islam. Therefore, theoretically, Muslims in any part of India cannot wear a hijab if challenged in a court of law.</p>
<p>There were <a href="https://en.wikipedia.org/wiki/Opposition_to_the_partition_of_India" rel="nofollow noreferrer">many Muslims who opposed the Two-Nation Theory and the partition of India</a> on religious grounds. Some of them must have had first-hand experience in the design of the 1950's constitution of India. I am interested in knowing their views about the hijab. Therefore, I think, consulting the 1950's constitution would be a great idea.</p>
<p>How would the first constitution of India interpret the wearing of hijab in the classrooms?</p>

<p>The 1949 constitution is <a href="https://indiankanoon.org/doc/237570/" rel="noreferrer">here</a>. The wording has not changes in any material fashion that impinges on religion, and there is no specific mention of hijab or other items of apparel. However, it is not trivial to mention the provision in Art. 25(2)(b), which is still valid, that &quot;The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion&quot;. There is a legal principle to the effect that if you say one thing and don't say another, you can infer that it was not intended to include the other. Given an opportunity to also explicitly constitutionally include the hijab as a &quot;profession of the Muslim religion&quot;, and the fact that it was not so included, the courts would concludes that there is a stark difference between the kirpan and the hijab.</p>
<p>There have been various tweaks to the wording of provisions related to religion since the original version, but none that would affect how the courts would interpret this case. The <a href="https://www.scobserver.in/wp-content/uploads/2022/02/karnataka-high-court-412148.pdf" rel="noreferrer">Karnataka ruling</a> discusses the concept of &quot;religion&quot; versus &quot;culture&quot; (proffering the decidedly Hindu-centric view that &quot;religion&quot; is &quot;dharma&quot;), and they posit w.r.t. the hijab that &quot;At the most the practice of wearing this apparel may have something to do with culture but certainly not with religion&quot;. In other words, the words of the constitution don't tell you what status the hijab has.</p>
