Hijab is not an essential practice of Islam: Karnataka High Court

Context: The High court upheld the legality of the Karnataka Government’s order prescribing wearing of uniforms in schools and pre-university colleges under provisions of the Karnataka Education Act, 1983.

Key highlights of court’s judgement

• It declared wearing a hijab (headscarf) by Muslim women does not form a part of essential religious practices in the Islamic faith and it is not protected under the right to freedom of religion guaranteed under Article 25 of the Constitution of India.
• It ruled that prescription of school uniform does not violate either the right to freedom of speech and expression under Article 19(1) (a) or the right to privacy under Article 21 of the Constitution.
• It ruled that the restriction against wearing of hijab in educational institutions is only a reasonable restriction constitutionally permissible, which the students cannot object to.
• The court upheld the legality of the Karnataka Government’s order prescribing the wearing of uniforms in schools and pre-university colleges under provisions of the Karnataka Education Act, 1983.

Petitioner arguments

• They contended that wearing of hijab is a necessary religious practice and that the action of the state government amounted to hostile discrimination based on religion.
• They said that Muslim girls are least represented in classrooms and if they are shut out, it will be a further setback for the community.
• They argued that they cannot be barred from wearing the hijab in classrooms as there is no law at the present restricting wearing of hijabs in classrooms.
• According to them, any ban would impinge on fundamental rights and freedom of religion guaranteed under Article 25 of the Constitution.

Government’s stand

• The state government contended that wearing of a hijab was not an essential religious practice.
• It said that the practice must pass the test of constitutional morality and individual dignity as expounded by the Supreme court in the Sabarimala case.
• It has been said that the freedom of religion can be subjected to reasonable restrictions under constitutional provisions for maintaining institutional discipline.
• It claimed that educational institutions can impose dress codes/uniforms prohibiting religious attire to ensure secular education.

Essential religious practice

• It means all those practices that are fundamental to a religion and not following them would result in the change of religion itself.
• Denying the essential religious practices would violate Article 25.
• It talks about the freedom of conscience and free profession, practice, and propagation of religion.
• The government can impinge upon essential religious practices on three grounds under Article 25(1): public order, morality, or health.
• Article 25 (2) says 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.

Supreme Court on the essential religious practices
The Shirur Mutt case, 1954

• A seven-judge bench held that the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.
• Sardar Syedna Taher Saifuddin Saheb vs the State of Bombay, 1962
• SC upheld the right and power of the head priest of the Dawoodi Bohra community to excommunicate members.
• It reiterated that essential practice is to be gathered from the texts and tenets of the religion.

Acharya Jagadisharananda (Tandava Dance), 2004

• The SC ruled that Tandava dance was not an essential practice of the Ananda Marga faith.
• It again said that what determines if a practice forms an essential part of the religion is whether the absence of the practice fundamentally alters the religion.

Shayara Bano (Triple Talaq), 2017

• It held that Triple Talaq was against the basic tenets of the Qur'an and violative of the Shariat.
• A practice merely permitted or not prohibited by religion cannot be considered an essential or positive tenet sanctioned by religion.

Sabarimala, 2018

• It ruled that the ban on women aged 10-50 from entering the Sabarimala Temple was not an essential religious practice.