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An Analysis Of Essential Religious Practices In The Light Of Hijab Ruling

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 campus.

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 religion
  1. 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 religion;
  2. Nothing in this article shall affect the operation of any existing law or prevent the State from making any law;
    1. regulating or restricting any economic, financial, political, or other secular activity which may be associated with religious practice;
    2. 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.
They are:
  1. 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 Constitution?
  2. 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?

Secularism Principle:

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 Karnataka Judgment.

Being a basic structure of the constitution, the principle of Secularism cannot be abrogated as mandated by Kesavananda Bharati v State of Kerela 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 positive secularism.

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 State.

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 observed that:
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:
  1. Not every activity associated with religion is essential to such a religion. Practice should be fundamental to religion and should be from time immemorial.
  2. The foundation of the practice must precede the religion itself or should be founded at the origin of the religion.
  3. 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,
  4. 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.
  5. 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:
  1. Quran
  2. Hadith
  3. Ijma
  4. Qiyas

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 uniforms.

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, sex, etc.

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 Constitution.

End-Notes:
  • Resham v. State of Karnataka, 2022 SCC OnLine Kar 341
  • "Hijab Not Essential Religious Practice In Islam": Karnataka High Court Dismisses Muslim Girls' Petitions Against Hijab Ban In Colleges, , https://www.livelaw.in/top-stories/hijab-not-essential-religious-practice-in-islam-karnataka-high-court-dismisses-muslim-girls-petitions-against-hijab-ban-in-colleges-194192 (last visited Mar 25, 2022).
  • John M Deutch et al., Update of the MIT 2003 Future of nuclear power, Update 20 (2009), https://legislative.gov.in/constitution-of-india last visited Mar 25, 2022
  • Id.
  • Id.
  • Id.
  • The Constitution (Forty-Second Amendment) Act, 1976|Legislative Department | Ministry of Law and Justice | GoI, , https://legislative.gov.in/constitution-forty-second-amendment-act-1976 (last visited Mar 25, 2022).
  • S.R. Bommai v. Union of India, (1994) 3 SCC 1
  • Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225
  • Government of India, Constitution of India, Ministry of Law and Justice, https://legislative.gov.in/constitution-of-india (last visited Mar 25, 2022).
  • Id.
  • Acharya Jagadishwarananda Avadhuta v. Commissioner of Police, Calcutta, 1990 SCC OnLine Cal 104
  • Indian Young Lawyers Assn. (Sabarimala Temple-5J.) v. State of Kerala, (2019) 11 SCC 1
  • Shayara Bano v. Union of India, (2017) 9 SCC 1
  • Surah An-Nur - 31 - Quran.com, , https://quran.com/24/31 (last visited Mar 25, 2022).
  • Surah An-Nur - 31 - Quran.com, , https://quran.com/24/31 (last visited Mar 22, 2022).
  • Enforcement Of Compulsory Primary Education,
  • Employment Division, Department Of Human Resources Of Oregon, et al., Petitioners v. Alfred L. SMITH et al. | Supreme Court | US Law | LII / Legal Information Institute, , https://www.law.cornell.edu/supremecourt/text/494/872 (last visited Mar 25, 2022).
  • Government of India, supra note 10.
  • Id.

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