During the last few months, there is a pertinent issue that was under
discussion in the Karnataka High Court. The case of Resham v. State of Karnataka
(2022) popularly known as Hijab Case. In this article, the discussion is
inclined toward what constitutes to be an 'Essential Religious Practice' and
also what has been the precedents related to upholding and defining the
essential religious practice.
The judgment has been decided by the Karnataka High Court on 14 March 2022. in
the Judgment delivered by the high court, it has stated that Hijab does not fall
within the 'Essential Religious Practices' and if any order passed by an
institution mandating the school uniform, such order should be upheld. It cannot
be declared unconstitutional. The Judgment has already raised a lot of
controversy and debates. Also, the Judgment has been appealed in the Supreme
Court on the very same day.
Having a look at the background of the whole controversy, few months back there
were orders issued by various colleges in Karnataka which states that "no
students will be allowed in campus if they are not in proper school uniform".
Along with the said orders, the head scarf and Hijab were also not permitted in
The petitioner approached the Karnataka High Court against the said order by
filling a writ petition under Article 226. The petitioner claimed that Hijab is
an integral part of essential religious practice of Islam and so its guaranteed
under Article 25 of Indian Constitution. Hence, such an order passed by the
authorities is an infringement of the Fundamental Rights guaranteed under the
Constitution and it should be declared unconstitutional.
Article 25 states that:
"25. Freedom of conscience and free profession, practice, and propagation of
- Subject to public order, morality, and health and to the other
provisions of this Part, all persons are equally entitled to freedom of
conscience and the right freely to profess, practice, and propagate
- Nothing in this article shall affect the operation of any existing law
or prevent the State from making any law;
- regulating or restricting any economic, financial, political, or other
secular activity which may be associated with religious practice;
- providing for social welfare and reform or the throwing open of Hindu
religious institutions of a public character to all classes and sections of
Hindus Explanation I The wearing and carrying of kirpans shall be deemed to be
included in the profession of the Sikh religion Explanation II In sub-clause (b)
of clause reference to Hindus shall be construed as including a reference to
persons professing the Sikh, Jaina or Buddhist religion, and the reference to
Hindu religious institutions shall be construed accordingly."
The Court of Karnataka was asked to decide upon the two major issues and some
minor issues associated with that were raised in this Judgment.
- Whether wearing a hijab head- the scarf is a part of 'Essential Religious
Practice' in the Islamic faith protected under Article 25 of the Indian
- Whether prescription of school uniform is not legally permissible, as
being violative of petitioners Fundamental Rights inter alia guaranteed under Article
19 (1) (a) (Freedom of Speech and Expression) and Article 21, (i.e., Right to
privacy) of the Constitution?
The 42nd Amendment of the Indian Constitution Act,
1976 added the word "Secularism" to the Preamble of the Constitution. The
Supreme Court in various judgement has stated that "Secularism is the basic
feature of our Indian Constitution" including S.R.Bommai v State of
Being a basic structure of the constitution, the principle
of Secularism cannot be abrogated as mandated by Kesavananda Bharati v State of
Judgment. The ethos of Indian Secularism may not be appropriated to the
USA model of Separation of Power where there is a separation between the Church
and State as envisaged under the American Constitution post 1st Amendment of the
American Constitution (1791).
Our Constitution does not follow the USA model
rather here State will not discriminate on the basis of religion rather it will
treat and promote every religion equally. Our Secularism is considered to be
H. M.Seervai, in his book Constitution of India writes that 'India is a secular
but not an anti-religious State, for our constitution guarantees the freedom of
conscience and religion. Articles 27 and 28 emphasize the Secular nature of the
Even if we look into Article 51A(e) of our Constitution, it imposes a duty upon
every citizen to promote harmony and the spirit of common brotherhood among all
the people of India transcending religious, linguistic and regional or sectional
diversities, to renounce practices derogatory to the dignity of women.
The High Court emphasized on this point in order to establish that yes, our
Country is a Secular Country.
While discussing the Second issue related to essential religious practices, the
Supreme Court emphasized upon some of the earlier decided landmark judgments
related to the same issue. In Acharya Jagadishwarananda Avadhuta, the court
The protection guaranteed under Article 25 and 26 of the
Constitution is not confined to the matter of doctrine or belief but extend to
acts done in the pursuance of religion and, therefore, contains a guarantee for
rituals, observance, ceremonies, and modes of worship which are essential or
integral part of religion.
It includes what has been specified in the religious
texts and in order to perform that principle, all the acts associated with the
same will be considered an essential religious practice.
The Court also refereed to Indian Young Lawyers Association case and stated that
in order to be called an essential religious practice, all the four conditions
specified in the Judgement needs to be fulfilled. These conditions are:
- Not every activity associated with religion is essential to such a
religion. Practice should be fundamental to religion and should be from time
- The foundation of the practice must precede the religion itself or
should be founded at the origin of the religion.
- Such Practices must form the cornerstone of religion itself. If that
practice is not observed or followed, it would result in the change of
religion itself and,
- Such practice must be the binding nature of the religion itself and must
be compelling. That a practice claimed to be essential to the religion has
been carried on since time immemorial or is grounded in the religious texts
per se does not lend to it the constitutional protection unless it passes
the test of essentiality as is adjudged by the Courts in their role as the
guardians of the Constitution. It means it should be the practice of such a
nature that should have been stated in the religious texts.
- One more thing that needs to be taken into consideration that whatever
religious practice are enumerated, that should be in accordance with the
values and essence of the Indian Constitution.
Sources of Islamic Law
The Holy Quran is the principal source of Muslim Law. The Apex court paragraphs
7 & 54 in Shayara Bano case quotes by Fyzee's Treaties which reads-
There are four sources for Islamic Law:
The learned author has correctly stated that the Holy Quran is the "First source
of Law". According to the learned author, pre-eminence is to be given to the
Holy Quran. This means sources other than the Holy Quran are only to supplement
what is given in it and to supply what is not provided for.
The court while quoting verses of Quran stated that in Quran it has been
specifically provided that "Let there be no compulsion in religion"- in verse
256. Adding to this the footnote 300 to this verse as stated by Mr. Abdullah
Yusuf Ali, appreciably reasons out "Compulsion is incompatible with religion
because it depends upon faith and will, and these would be meaningless if
induced by force". So religion should always be a matter of will and not force.
Even what has been stated in Sura XXIV. 31 C. -158 has been quoted, which states
"And tell the believing women to lower their gaze and guard their chastity, and
not to reveal their adornments except what normally appears. Let them draw their
veils over their chests, and not reveal their ˹hidden˺ adornments except to
their husbands, their fathers, their fathers-in-law, their sons, their stepsons,
their brothers, their brothers' sons or sisters' sons, their fellow women, those
˹bondwomen˺ in their possession, male attendants with no desire, or children who
are still unaware of women's nakedness. Let them not stomp their feet, drawing
attention to their hidden adornments. Turn to Allah in repentance all together,
O believers, so that you may be successful."
Is Hijab Islam-specific?
The court stated that Hijab is a veil, ordinarily worn by Muslim Women, which is
True. Its origin in the Arabic verb Hajaba has etymological similarities with
the verb "To hide". Hijab nearly translates to portion, the screen on the
curtain. There are various interpretations that can be applied to understand the
usage of the Hijab: visual, spatial, ethical, and moral.
But this word as such is not employed in Quran, and cannot be disputed, although
commentators may have employed it. The Holy Quran does not mandate the wearing
of a Hijab or headgear for Muslim Women. Whatever is stated in the above suras,
is only a directory because there is an absence of prescription of penalty or
penance for not wearing a hijab. So, this apparel at the most is a means to gain
access to public places and not to meet the religious end in itself.
Regards being had to the kind of life conditions then obtained in the region
concerned, wearing a hijab was recommended as a measure of Social Security for
women and to facilitate their safe access to the public domain. At the most, the
wearing of hijab as apparel may affect the culture but it has nothing to do with
the religion and religious practices.
So, it can be easily concluded that wearing hijab although can be considered as
a part of apparel but cannot meet the essentials required to be called as an
essential religious practice in Islamic faith.
Whether wearing a uniform holds legality?
This is because of the passionate submission of the petitioners that there is
absolutely no such power to prescribe uniform in the scheme of the 1983 Act or
the Rules promulgated thereunder. The idea of schooling is incomplete without
teachers, students, and the dress code. It is because of this collectiveness
they make a singularity. Hence, no reasonable mind can imagine a school without
The practice has been in existence since the ancient gurukul days. Several
Indian scriptures mention samavastr/ shubhravesh in Sanskrit, their English near
equivalent being the uniform.
The prescription of dress code for the students that too within the four walls
of the class room as distinguished form the rest of the school premises does not
offend constitutionality protected category of rights, when they are
'religion-neutral' and 'universally applicable' to all the students.
Hence, the prescription of school uniforms to the exclusion of hijab does not
violate Articles 14, 15, 19(1)(a), and 21 of the Indian Constitution as its
applicability is uniform to everyone irrespective of religion, race, or caste,
In order to supplement the above-stated argument, the court has cited Justice
Scalia's decision in Employment Division v Smith, in which he states that School
uniform promotes harmony & spirit of common brotherhood transcending religious
or sectional diversities. This apart, it is impossible to instill the scientific
temperament that our Constitution prescribes as a fundamental duty under Article
51A(h) into the young minds so long as any propositions such as wearing hijab or
bhagwa are regarded as religious sacrosanct and therefore, amicable to
questions. They inculcate secular values amongst the students in their
impressionable & formative years.
In the view of the above, we are of the considered opinion that the prescription
of school uniforms is only a reasonable restriction constitutionally permissible
to which the students cannot object to.
Hence, the court finally stated that Hijab cannot qualify the test of Essential
religious practice and hence should not be permitted within the school premises
also the court upheld the applicability of the uniform and rejected the
contention that Hijab is a form of expression under Article 19 (1)(a) of Indian
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