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The Kerala High Court’s direction to AIIMS to respect religious rights guaranteed under the constitution and allow Muslim women to wear a hijab while appearing for an entrance exam, overturned a 2015 ruling by the Supreme Court

~By Naveen Nair in Thiruvananthapuram

For 19-year-old Fida Fathima from Kozhikode, the legal battle she won in the Kerala High Court to protect her religious rights under Article 25 (1) of the Indian Constitution was a significant one—both as a citizen and as a Muslim. The young girl was forced to take legal recourse after she received her admit card for the MBBS entrance examination conducted by the All India Institute of Medical Sciences (AIIMS) on May 28.

What upset Fathima was that the admit card listed items which candidates were prohibited from bringing/ wearing into the examination hall and this included “headgear and scarf”. This was not acceptable for Fathima who had covered her head with a hijab since childhood in accordance with the practice prescribed by her religion. She decided to go to court.

CONSTITUTIONAL RIGHT

On May, 24, the Kerala High Court upheld the plea filed by Fathima and three others and ruled that the directions issued by AIIMS are a direct infringement of Article 25 (1) of the Constitution of India which says “…all persons are equally entitled to freedom of conscience and the right to freely   profess, practice and propagate any religion of one’s choice”. The Court, while passing the judgment, directed AIIMS to ensure that “the restrictions as regards to use of headgear/head scarf should not be enforced against candidates who by virtue of Article 25 (1) of the Constitution have the protection to wear such dress as part of their faith.’’

Photo: Anil Shakya
Photo: Anil Shakya

An elated Fathima says that she was immensely pleased that she could take the examination on May 28 without feeling guilty of having shown disrespect to her religion.“I felt immensely proud when I got this judgment from the court because it upholds my right to practice my religion and yet at the same time pursue my dream in life. I hope this judgment will give strength to candidates like me in the future who are in a dilemma as to whether they should respect their religion or blindly follow such rules. Just because someone is practicing her religion doesn’t mean she should be denied opportunities in life,’’ Fida Fathima told India Legal.

This is not the first time that the issues of headgear and scarf have come up before the Kerala High Court. In 2016, a similar case was heard by the court ahead of the pre-medical entrance examination conducted by the Central Board for Secondary Education (CBSE). The ruling went in favour of Amnah Bint Basheer of Thrissur who was allowed to sit for the examination wearing a hijab. The Court had observed that “the right of women to have the choice of dress based on religious injunctions is a fundamental right protected when such prescription of dress is an essential part of religion”.

Hence on May 24, the Kerala High Court was only reiterating one of its earlier judgments. However, the advocate who appeared for Fathima, PE Sajal, claimed it was a landmark verdict. “What the court said in 2016 was for that particular case and that is why the issue has come up again. Even the AIIMS admit card was not fully clear about the rules. This judgment brings clarity on the issue and will set a precedent,’’ Sajal told India Legal.

The Court directed Fathima and others who wear the head dress to reach the venue of the examination at least one hour in advance so that they could be thoroughly frisked by a lady invigilator. The Court has also added that such checks should be carried out “respecting religious sentiments”.

DIFFERING VERDICTS

It has never been smooth sailing for those who insist on wearing a hijab. In 2015, the CBSE had come out with a set of guidelines banning use of headgears and scarf in the pre-medical entrance examinations. This was done after rampant malpractices were reported from certain centres. Three girls had then approached the Supreme Court with a plea similar to the one filed by Fathima. The apex court turned it down and asked the students to appear in the examination without wearing any headgear or scarf.

“These are times when everything is being questioned—from what we wear to what we eat.  When a highly sensitive issue is involved, why frame such rules?”

                                                                                                                              —Fathima Thahaliya, advocate

However, in 2016 following widespread criticism, the CBSE relaxed the rules allowing veils and certain kind of burqas inside exams but again kept out the head scarf. Here again, Justice A Muhamed Mustaq of the Kerala High Court directed the CBSE to admit a Thrissur-based student and also asked the Board to frame proper rules that do not infringe on the religious rights of candidates.

The CBSE was in for further embarrassment when girl students cutting across religious barriers raised a hue and cry about the totally unethical way in which they were frisked and checked at exam centres. One in Kannur, North Kerala was in the eye of storm when students alleged that even their undergarments were checked. “It was so humiliating. The invigilator asked me to unhook my top innerwear to check. I was so disturbed that I could not write the examination,’’ a student told the media.

After the huge outcry, an investigation was initiated by the State Human Rights Commission which also visited the school in which the incident occurred and suspended four invigilators. Kerala Chief Minister Pinarayi Vijayan also directed the district administration to initiate criminal proceeding against the school.

Advocate Fathima Thahaliya, who was one of the petitioners along with Fida Fathima and others at the High Court in the latest case, says it is commendable that the High Court ruled in their favour despite the Supreme Court taking a different stand in 2015. “These are times when everything is being questioned—from what we wear to what we eat. So it is absolutely important to question such rules at the moment. When it is known that a highly sensitive issue is involved, why frame such rules? If it’s for preventing malpractice then there are many other mechanisms that can be used,’’ she says.

The Kerala High Court’s recent ruling only reinforces that the fundamental rights enshrined in Article 25 (1) are indisputable and no new rule can bend it.

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