SECULAR BOUNDARIES OR RELIGIOUS SUPPRESSION? RETHINKING EDUCATIONAL INSTITUTIONS’ CONTROL OVER RELIGIOUS SYMBOLS – The Magazine Committee of Government Law College, Mumbai

SECULAR BOUNDARIES OR RELIGIOUS SUPPRESSION? RETHINKING EDUCATIONAL INSTITUTIONS' CONTROL OVER RELIGIOUS SYMBOLS

INTRODUCTION

Irrespective of how acquainted one is with the law, every Indian citizen can probably recite from memory that we, the people of India, have solemnly resolved to transform India into a Sovereign, Socialist, Secular and Democratic Republic. These words, enshrined in the Preamble to the Indian Constitution, are a key to understanding the nature of the Indian State. This is the reason why there was much ruckus when the words “Socialist” and “Secular” were added to the Preamble through the 42nd Amendment Act – allegedly, there was an attempt to change the nature of the Indian Subcontinent. How could a country like India, the birthplace of diverse religions like Hinduism, Buddhism and Jainism, ever be a secular State? This argument, however, only holds ground when we consider the term ‘Secularism’ in congruence with its understanding in countries like France, which follow Laïcité, the neutrality of the state towards religious beliefs, and the complete isolation of religious and public spheres which translates into the French state and government not taking a position on any religion or its practices.1

This is not the nature of Secularism in India. According to the great statesman-philosopher, Dr. S Radhakrishnan, whose view was also considered in S.R. Bommai v. UOI2, “When India is said to be a secular State, it does not mean that we reject reality of an unseen spirit or the relevance of religion to life or that we exalt irreligion. It does not mean that secularism itself becomes a positive religion or that the State assumes divine prerogatives. Though faith in the Supreme is the basic principle of the Indian tradition, the Indian State will not identify itself with or be controlled by any particular religion. We hold that no one religion should be given preferential status, or unique distinction, that no one religion should be accorded special privileges in national life or international relations for that would be a violation of the basic principles of democracy and contrary to the best interests of religion and Government.”3

This view about the nature of Indian secularism has been upheld in several judgements like Ms. Aruna Roy v. Union of India4. Donald E. Smith explains that “To most Indians, secular means non-communal, or non-sectarian, but it does not mean non-religious. The basis of

1 Frederick Mark Gedicks, Religious Exemptions, Formal Neutrality, and Laïcité, 13(2) Indiana Journal of Global Legal Studies 473-492 (2006).

2 S.R. Bommai v. Union of India, AIR 1994 SC 1918.

3 Dr. S. Radhakrishnan, Recovery of Faith (Harper Brothers, 1955) 202.

4 Ms. Aruna Roy & Ors. v. Union of India & Ors., (2002) 7 SCC 368

secular state is not a ‘wall of separation’ between state and religion but rather ‘no preference doctrine’ which requires that no special privilege be granted to any one religion. The secular state includes the principle that the function of the state must be non-religious.”5

Thus, India is a Secular State which shall recognize and equally protect all religions without identifying with or preferring any religion. It follows from this that no educational institution fully funded by the State can be allowed to impart “religious instruction” to its students as it would be improper to spend public funds for the furtherance and promotion of beliefs of a particular religion. The Courts of the country have already distinguished between “religious education” and religious instruction in Aruna Roy’s case and have clarified that Article 286 prohibits religious instruction but allows religious education or education about religions. Article 28 also does not bar any privately funded educational institution from imparting either religious education or instruction, provided that the student can choose whether or not to participate in such instruction.

The juncture that we have now reached compels us to question – if religious education is allowed in Indian educational institutions, should religious symbols also be allowed?

HISTORICAL EVOLUTION OF THE INDIAN EDUCATION SYSTEM

Education in India, since time immemorial has been influenced by religion7. With origins that go back centuries, religious education in India has a rich historical legacy. It is essential to look at the historical context that has shaped the place of religious education in the country's existence before getting into the constitutional provisions. This historical viewpoint highlights the difficulties of governing a varied and different society in terms of education and aids in our understanding of the necessity of a secular Constitution. Around 1500 BCE, Hindus had two major systems of education – ‘gurukulas’ or the house of the teacher where students would reside until they completed their study and ‘vidyapeeths’ for higher spiritual study. The education system under the Hindus was focused on individuals and directed towards growth of their character. However, education slowly became monopolized for the Brahmins during the later Vedic age and eventually people from other castes became frustrated.

5 Donald E. Smith, India as a Secular State 381 (Princeton University Press, 1963).

6 India Const., art. 28.

7 Dr. C.V. Sindhuja & Dr. H.S. Ashok, Education in India: A Historical Perspective, 10 Edu. India J. 47 (2021).

In the 6th century, the advent and propagation of Buddhism attracted the people who found that the Hindu system of education did not fit their non-religious practices 8 as they considered the Hindu education system too focused on ritualistic modalities.9 Initially, Buddhist education was limited within monasteries but it was soon opened to the masses who were taught logic, meditation, grammar, medicine and Inner Science.10 Nalanda, a Buddhist Mahavira (great monastery), considered to be among the greatest centres of learning in the world, is one of the monasteries where Buddhist education was carried out.

After the Buddhist wave of education, the Islams arrived post 1200 AD. Muslim educational institutions were attached to mosques and focused on the study of the Quran, metaphysics, ethics and manual skills. Gurukulas, Monasteries and Madarsas all focused on the spiritual dimension to life though the curriculum also contained subjects necessary for earning a livelihood. Thus, these institutions imparted “religious instruction”, which is now constitutionally forbidden in fully State-funded educational institutions.

When the British colonised India, Christian missionaries entered the sphere of education and hoped to make schools the centres of spiritual and religious dialogue.11

Thus, it is evident that educational institutions in India have always been centred around religion. Post-independence, however, Constitution makers inserted Article 28 to ensure the secular nature of Indian educational institutions fully funded by the State. The question that arises here is whether this secular nature only extends to religious instruction or religious symbols as well? To answer that, we need to understand the Constitutional provisions that enshrine secularism and religious freedom.

CONSTITUTIONAL PROVISIONS

The commitment to secularism in the Indian Constitution was a deliberate choice influenced by India’s historical context, which aimed to ensure that religion would not play a

determining role in the governance of the state.12

Article 25 – Article 25 guarantees the fundamental right to freedom of religion, emphasizing freedom of conscience and the rights to practice, profess, and propagate one’s faith, subject to

8 Ibid.

9 Supra note 8.

10 Supra note 8.

11 Supra note 8.

12 Rajeev Bhargava, The Secular State and the Clash of Identities: Essays on the Discourse of India in the 21st Century (Oxford University Press, 2006).

public order, decency, morality, and other provisions of Part III of the Indian Constitution. This article highlights individual religious freedom as a cornerstone of India’s secularism, ensuring that individuals have the liberty to choose and practice their faith without

interference.13

Article 28 – Mentioned previously, this Article is the most crucial when discussing the

question of restriction of religious symbols in educational institutions. Article 28(1) mandates that no religious instruction shall be imparted in any institution fully funded by the state.

However, educational institutions which are established under any endowment or trust and is just administered by the State and require religious instructions to be imparted can do so.

Article 28(3) states that no one is compelled to participate in religious instruction or attend worship in educational institutions that are recognized by the state or that receive funding from it unless they voluntarily choose to do so or, in the case of a minor, have the guardian's consent. This article balances secularism with the right to religious education, ensuring that government-funded institutions maintain a stance of religious neutrality.14

13 Rama Jois, Constitutional Law of India (Universal Law Publishing Co., 2007).

14 Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford University Press, 1966).

15 Lautsi & Ors v. Italy, [2011] ECHR Application No. 30814/06.

Now, if private and minority educational institutions are allowed to display religious symbols, can these institutions impose a restriction on students from doing the same?

In recent times, there has been quite a few incidents that make this question very relevant. In Kanpur’s St. Mary’s Convent, a few boys who went to school wearing a Rakhi (a pagan thread) and girls who wore Mehendi (a traditional drawing on hands using henna), were asked to wash off the mehendi, which led to bleeding and the Rakhis were cut off.16 There have also been several incidents where Muslim girl students have been directed to follow proper dress code of educational institutions and ditch their religious practice of covering their face with a veil while attending the institution. This issue is one that is not only faced in India but also abroad. In 2010, the French government passed a law prohibiting the concealment of one’s face in public which prevents Muslim veils that cover the face in all public places and not only in schools.17 However, as we have noted before, the nature of French secularism is different from the nature of Indian secularism.

RATIONALE BEHIND RESTRICTING RELIGIOUS SYMBOLS

Educational institutions mostly argue that they restrict religious symbols to maintain uniformity among students or to ensure fairness during examinations. These restrictions are often challenged by students and it is the nature of religion itself which brings this situation to a deadlock. Educational institutions may demand that the institution is a secular place or follows a particular religion and other or any religious practices cannot be brought into the institution by the students, but most religions are not compatible with staying private. More often than not, the religious codes strive to regulate entire life of a person and do not differentiate between public and private lives. Thus, if a religion prescribes certain attire, it has to be worn always irrespective of private and public life.18 Thus, students argue that by restricting religious symbols like Sikh turbans, sacred threads in Hinduism, face veils for Muslims or any other such symbol, the educational institution violates their fundamental right to freedom of practicing, propagating and professing one’s religion, as guaranteed under Article 25(1).

16Faiz Rahman Siddiqui, Students punished for sporting rakhis, henna; DM orders probe, Times of India (Sept. 3, 2015), https://timesofindia.indiatimes.com/city/kanpur/students-punished-for-sporting-rakhis-henna-dm- orders-probe/articleshow/48786092.cms .

17Rahul Mohanty, Religious Symbols and Attire in Public Schools: A Comparative Constitutional Analysis, 3

Nirma Univ. L. J. 45 (2014).

18 Ibid.

However, as the Honourable Supreme Court analyzed in Amna Bint Basheer v. Central Board of Secondary Education,19 “in dealing with the question of freedom of religious practices, the Court must dwell on to find such practices are essential to maintain the identity of a person to profess his faith in the religion he practices and if not allowed, whether it would result in the wrath of the injunctions of the religious doctrine he professes.” This is the main ideology behind the Essential Religious Practices Test. In the same case it was held that:

“The upshot of the discussions as above is as follows:

The fundamental right of freedom to practice religion is protected to the extent to practice essential part of the religion, subject to the restrictions enumerated under Articles 25(1) and 26.

There is no fundamental right conferred on any person about practice of non- essential part of a religion. Therefore, the State is competent to curb or regulate or interfere with the non-essential part of the religious practices on any reasonable ground.

The State is competent to make laws in areas referred under Article 25(2)(a) & (b) and also to make laws consistent with the essential part of the religious practice.”

Thus, according to the Essential Religious Practices test, educational institutions may restrict religious symbols that are non-essential to the religion. The burden for determining which practices are essential to the religion would undoubtedly fall upon the Indian Courts. The present judicial scenario of the country suggests that restrictions on non-essential religious symbols can be imposed by educational institutions, for the greater interest of the institution over the individual interest of the student.20

EDUCATIONAL INSTITUTES AS NEUTRAL SPACES OR CULTURAL BATTLEGROUNDS?

Schools should be neutral, secular spaces—but there is more to it than that, particularly in light of policies around religious symbols: Should schools ban religious symbols as a means of fostering equality, or make them battlefields of competing cultural and religious identities? It

19 Amna Bint Basheer v. Central Board of Secondary Education, 2016 (2) KLT 601.

20 Supra note 19.

ultimately comes down to whether schools should help in shaping a common, secular civic identity or leave room for students and their parents to practice their own religions.

Most of the arguments for these bans lean on an argument that schools must be strictly neutral, lest coercion and privilege breach the walls and shatter any hope of a civic community. They see this form of neutrality as a bonding agent between people, not an unnecessary wedge driver. Many critics believe this can actually have opposite consequences by making invisible differences visible, hence engendering social conflict.

The concept of neutrality in schools stems from the principle of secularism, which demands that state institutions take a neutral stance as regards religion. Think laïcité in France, which calls for an outright separation between religion and the state, particularly in public schools. In 2004, France passed a law that prohibited flamboyant religious signs and symbols, like hijabs, but also crosses of Christians and kippahs of Jews in institutions of learning. The rationale behind this was that the disposition would make individuals feel they were part of the republic by not allowing religious differences to define places of learning. Critics, however, have pointed out that this is far from neutral ground, as many public schools actually drown minority culture.

France is not alone in this. A district court in Karnataka upheld the ban on hijabs, as well as all other religious symbols in some schools in Karnataka, contending it would 'determine discipline among students by having a uniform dress code' and protect 'the secular character of these educational institutions.21 That decision led to protests across India, with detractors claiming it was against their constitutional right to freedom of religion provided for under Article 25 of the Indian constitution. They also contended that, instead of being neutral zones where differences are set aside, Indian schools were increasingly becoming sites for cultural contests around religious norms that have a discriminatory impact on Muslim girls

LEGAL ASPECTS: CASES, PROVISIONS, AND HUMAN RIGHTS LAWS

The use of religious symbols in schools shows a deep-seated legal ambivalence between secularism and freedom of religion, with each country developing this issue in a way shaped by its constitutional and cultural heritage. France's laïcité has led the country to emphasize

21Navin Sinha & Mitul Dutta, The Hijab Ban Verdict: A Case Note on Aishat Shifat v. The State of Karnataka, J.

L. Religion & State (2023).

secularism through laws that restrict visible religious symbols within public schools, aiming to promote neutrality and social cohesion22. Secularism and religious freedom take different approaches under different legal systems, reflecting the unique historical, cultural, and legal foundation of each society.

In France, secularism is constitutionally embedded in the form of laïcité, and this has influenced policies like the 2004 law banning conspicuous religious symbols in public schools. This narrow interpretation seeks to eliminate explicit religious differences in public institutions as a way to maintain neutrality and ensure social cohesion. The European Court of Human Rights has supported this line of reasoning in cases like Leyla Şahin v. Turkey23, arguing that limits on religious symbols can be justified if they help sustain public order and the secularism necessary for democratic regimes.

While also constitutionally secular, India’s approach allows more tolerance for public religious expression, enabling a pluralistic approach to religion in society. Article 2524 of the Indian Constitution protects religious freedom, but the state can impose restrictions based on public order or morality. This issue was tested in the 2022 Karnataka Hijab Ban Case, where the High Court ruled that the hijab is not an essential religious practice in Islam, upholding a school uniform policy.25 Critics argue this disproportionately affects Muslim women’s rights to religious expression and highlights the tension between individual freedoms and uniformity in public institutions in India's secular framework.

On a global level, United Nations human rights declarations, such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR), support religious freedom. 26Article 18 of the ICCPR outlines conditions where restrictions on religious expression may be permissible when necessary to protect public order or the rights of others. 27However, this does not appear to occur constantly as in Eweida v. United Kingdom 28where the European Court of Human Rights favoured a Christian woman's right to wear a

22 Law No. 2004-228 of Mar. 15, 2004, Journal Officiel de la République Française [J.O.] [Official Gazette of France], Mar. 17, 2004 (Fr.).

23Leyla Şahin v. Turkey, App. No. 44774/98, Eur. Ct. H.R. (2005).

25 The Hijab Row in Karnataka: Egalitarian Uniformity and the Right to Religious Expression.

26Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/810 (1948).

27 International Covenant on Civil and Political Rights, art. 18, Dec. 16, 1966, 999 U.N.T.S. 171.

28 Eweida & Others v. United Kingdom, App. Nos. 48420/10, 59842/10, 51671/10, & 36516/10, Eur. Ct. H.R. (2013).

cross necklace at the workplace. It shows that the Court thinks through matters very well, seeking a balance between restrictions on religious symbols and individual rights so as not to overly interfere with personal religious expression.

Such divergent legal perspectives thus make it cumbersome to reconcile secularism with individual rights. In France, such an approach does indeed create uniformity in public spaces. However, countries such as India and the United Kingdom would be interested in allowing religious expression within frameworks that respect both secular values and personal freedoms. Certainly, across jurisdictions, courts increasingly adopt a case-by-case approach and evaluate the purpose and impact of restrictions on religious symbols in an effort to strike a fair balance between secularism and personal freedoms.

It is not easy to balance in a diverse and democratic society.It entails subtle striking of a balance between the sacredness of secularism in preserving state neutrality and securing the rights of citizens to observe their identities. As global legal trends evolve, most courts are experimenting with the solution that leaves secularism at its own expense of a different balance over respecting religious freedom and showing regard for state rights in the public sphere.

IMPACT ON STUDENTS’ IDENTITY AND INCLUSION

Making a restriction on religious symbols in schools reflects a strong message to students regarding their sense of self and belonging. We know that adolescence and early adulthood are periods when individuals seek to find their identity and define themselves through various factors such as family, cultural heritage, and religion. For many students, wearing a head scarf or hijab, a Sikh turban, a cross, or a kippah represents an outward expression of deeply held faith-based beliefs. When school policies exclude such displays in the name of neutrality, some may feel alienated—as if the message is that who they are, not just culturally but religiously, does not belong. This alienation runs deeper than feelings alone—it reflects a gap between institutional culture rooted in broader social values and individual cultures based on deeply personal belief systems.

The psychological effects of banning religious symbols worn by students should not be underestimated. Schools should be spaces that foster growth, discovery, and learning. Requiring students to forgo such basic forms of self-expression brings emotional pain and a strong risk of marginalization and lowered self-esteem, especially for those whose clothing or accessories represent their religion. Developmental psychology suggests that adolescence is

when individuals form a sense of identity, but if schools deny students the chance to express themselves religiously, this process can be disrupted.29

When France passed its 2004 law banning 'conspicuous' religious symbols in public schools, some observant Sikh students stopped wearing their required turbans at school. 30To those outside the faith, the issue may seem superficial, but for those who practice Sikhism, the turban is more than a symbol—it represents a visible, historical commitment to their religious faith. The fact that they were forced to remove it has led many to feel insulted and dehumanized by school officials—an outcome that should come as no surprise when competing interests infringe upon dignity.

These rules not only strike individual students but also make the cultural context of schools less inclusive. Schools, that presuppose homogeneity in look of students, are to favor majority cultures and push minority religious practices to the margins. And it is only when those minority students express themselves that the need for conformity arises, and the cultural diversity, along with true inclusivity, is lost.

Conversely, educational institutions that (open) their doors to religious attire—provided that there exist tolerable parameters—often cultivate a more conducive atmosphere. For example, numerous schools in the UK have modified their uniform policies to embrace religious garments, such as the hijab or Sikh turban.31 However, this is contingent upon the stipulation that it does not disrupt the learning process. This does not only respect pupils' religious beliefs but also promotes cultural diversity.

Schools that respect the rights of children to publicly express their religious identity and do something active to support them in that expression achieve equity in practice and a climate of real inclusion, as well as a richer learning environment for all.

CONCLUSION: TOWARDS HARMONIOUS COEXISTENCE OF SECULARISM AND RELIGIOUS FREEDOM IN EDUCATION

The school ban on religious symbols raises a particularly difficult issue, the challenge of how to implement secularism — an essential principle for any liberal democracy — while also respecting individual rights? In theory, this type of prohibition is meant to indicate an unbiased

29Erik H. Erikson, Identity: Youth and Crisis 94-110 (W.W. Norton & Co., 1968).

30United Sikhs v. France, App. No. 25463/08, Eur. Ct. H.R. (2010).

31 R (on the application of Begum) v. Governors of Denbigh High School, [2006] UKHL 15.

atmosphere where one cultural or religious practice does not take priority over another. But in practice, such a policy could well boomerang and exacerbate identity polarization on campus. Part of the complication is that what it means for schools to be a 'secular' space isn't entirely clear. Secularism, while often a more benign separation of religion and the state, can turn militaristic which would mean literally crushing the culture of minority group. By prohibiting all symbols and manifestations of faith in the public space, schools can inadvertently marginalize those students for whom such signs are integral to their identity, beliefs and values—making certain manifestations and forms of religiosity taboo in school. Many students may feel excluded or even targeted, which reveals a separation between the inclusive neutrality that these bans are supposed to create and the lived experience.

We need something much more nuanced than a binary choice between secularism and freedom of religion, since when it comes to biodiverse classrooms, one size does not fit all. Instead of banning expression outright, administrators and policymakers need to develop clearer guidelines and in fact should be more tolerant towards school setting by differentiating between necessary expressions within schools versus those that might violate the secular principles established by the Founding Fathers. Restrictions that seem reasonable, combined with continual conversations among school administrators, parents, teachers and the larger community can yield policies that uphold individual rights while also recognize a duty to develop a set of values that is inclusive.

International human rights law lays out the most basic principles to follow. The right to freedom of thought, conscience and religion is inherent in the self-expression of faith as an intrinsic part of a person by virtue of their identity protected under the Universal Declaration of Human Rights. Any restrictions should be requisite, proportionate and based on legitimate grounds — for instance, public order or protecting the rights of others. In this regard, the framework also slides in support of rules that are need to balance all interests. Such restrictions are also notable in terms of government involvement. For example, the neutrality of the state may turn into unreasoned opposition to religion when it forbids religious symbols. The ideal would be a government that creates an atmosphere of both respecting the secular character of governance and respecting the citizenry right to practice whatever they believe in. For instance, dialogue among educationists, common law attorneys, clergymen and activists can enable general principles that would promote inclusiveness while not compromising secular objectives.

We need to also see how these rules impact individual lives — especially the lives of women. In many cases, putting a ban on hijab and other religious symbols is patronizing as well. It could be interpreted as women are 'liberated' from worship obligations so that they can advance in education or personal freedom equivalent to men. Conversely, for plenty of women who wear such signs, it gives them power and satisfaction; they do this willingly instead of forced. And to them, respecting that choice runs deeper into the heart of gender equality than even measures intended to curtail freedom of expression—and enrolment.

When it comes to this question of letting schools wear religion symbols, it is not just a small one within society. We have to go towards getting compromises. These compromises should be focused on equity not uniformity. Schools ought to be environments where all students, no matter their backgrounds, are treated with dignity and respect. While respecting cultural and religious difference, secularism—which must be understood as freedom, not oppression—can help ensure a positive pedagogical context. This will be crucial in preparing students to negotiate diversity as society becomes more diverse.