Indian Constitution Framers Refused to Regulate Religious Attire

The Supreme Court of India is hearing a challenge to the constitutional validity of Karnataka’s ban on the wearing of Hijab in educational institutions. Muslim students argue that the ban violates their right to religious freedom guaranteed in the Constitution. On Day 2 of the hearings, Senior Advocate Devadatt Kamat, representing the students, referred to the Constituent Assembly Debates on Article 25 and argued that the Constitution Framers rejected a proposal to restrict the wearing religious attire in public.

In this podcast, we revisit this debate. Was there such a proposal? Who proposed it, and why? Listen to find out.

Transcript

Currently, the Supreme Court of India is hearing a challenge to a Karnataka Government Order that banned the wearing of Hijabs in educational institutions. Muslim students argued that the ban violated their Fundamental Right to freedom of conscience and practice of religion guaranteed under Article 25 of the Constitution.

On day 2 of the hearing, Senior Advocate Devadutt Kamat, representing the students, brought the Court’s attention to a discussion in the Indian Constituent Assembly on the topic of religious attire in public spaces. But what exactly is this debate that Sr. Advocate Kamat is referring to?

We go back 74 years when the Constituent Assembly had taken up Draft Article 19, which is Article 25 of our present Constitution, for debate.

The Draft Article stated that: ‘all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion’. It also contained an explanation that allowed people of the Sikh religion to carry kirpans in public spaces.

Tajamul Hussain, a barrister and political leader from Bihar, wanted to replace this explanation with ‘no person shall have any visible sign or mark or name, and no person shall wear any dress whereby his religion may be recognised’.

He believed that religion was a private matter between an individual and God and not something that had to be publicly expressed. For example, he observed that in Europe and the United States, one could not identify a person’s religion from their name or clothes.

Hussain continued that in India, ‘You find dhoties, pyjamas, kurtas and all sorts of things…’. However, in the interest of secularism and national integration, he reasoned that Indians should be uniform in their dress code and name, bearing no visible signs of religion.

Another member, Maulana Hasrat Mohani stood up and jokingly remarked that maybe Hussain should perhaps begin by changing his own name as it clearly signalled his religion.

No one else really responded to Hussain’s proposal. In fact, most members likely found the amendment rather bizarre considering India’s diversity and the predicament of religious minorities at that time.

Sure enough, at the end of the debate, the Constituent Assembly rejected Tajamul Hussain’s proposal to restrict religious attire in public spaces.