Wearing Hijab Is Not Essential Practice: Karnataka HC Judgement Analysis

 Resham v State of Karnataka, 2022

Source:AsianetnewsHindi

(This article is a personal observation of the author on the Karnataka High Court judgement and does not intent to hurt any religious or moral sentiment)

Judges: Chief Justice Ritu Raj Awasthi, Jts. Krishna Dixit and Jts. JM Kazi

(This article is a personal observation of the author on the Karnataka High Court judgement and does not intend to hurt any religious or moral sentiment)

Issue:

The main issue before the court was whether the hijab essential religious and cultural practice of Islam

Arguments

The argument by the petitioner was on the ground that Islam does not give the choice and therefore we do not have a choice but to wear hijab. Because as per essential religious practise test laid down by the Supreme Court distinguishes between what is necessary and what is not necessary for any religion. So, when the petitioner argued on the grounds of religion under article 25 of the Constitution. The respondent replied that it is not the essential practice of the Islam religion. And the case was largely made on Article 25 of the Constitution.

It was rather argued by jurist that the arguments should have been under article 21 and 19 and that the people have the right to choose what he or she wants to wear in a democratic country. And whether the authority had the power to issue such circular or not.

Judgement analysis

The HC of Karnataka has passed the judgement where it has found that the hijab is not an essential practice of Islam. On the grounds of discipline and harmony, this ban was upheld. In the case of Indira Nehru Gandhi v Raj Narain, the SC gave the definition of the word ‘secular’ that it means State shall not have any religion on its own, but the persons shall have an equal right to freedom of conscience and right to freely profess, practise and propagate religion.      

The Court observed that the Country was secular before 1976 when the word Secular was added in the Preamble by way of the 42^nd Constitutional amendment. Constitutional secularism was discussed. Article 25 provides individual rights of freedom of religion has been made subordinate to fundamental rights of the others, i.e., right to equality, non-discrimination etc.  

But the HC overlooked article 26 of freedom to manage religious affairs. The sentence “every religious denomination or any section thereof” gives power to the religious right collectively. The Doctrine of Essentiality is developed by the phrase ‘in matter of religion’ in clause (b) of the article. And article 26 is not made subordinate to other fundamental rights of the Constitution.

What are essential and integral religious practise?

The SC gave the answer to the question that what is religion in the judgement of Shirur mutt (1954 AIR 282), that “religion” will cover all rituals and practices “integral” to a religion. and by way of reading the scriptures, it will come to know what is integral and what is not. Bu the trouble was how to read any such scriptures, which was not given in the judgment. The SC should not read any such religious scriptures like it read any law made by the Parliament. The expert opinion should be taken into consideration by the people who hold sound knowledge of this field.

·       Earlier it was said that anything is in the scripture will be essential but now in this judgement, it is being said that it is not enough that it has to be only written in the scriptures, but until that particular practice has been made mandatory and not following the same would lead to punishment, then it would be considered essential. This reasoning of the court will lead to another trouble as the practice of adultery and homosexuality is very much restricted and punishable under various religions. Though the law has made them legal but in many religions, it is still considered a sin.

 

·       Court went on to say that a practice will not be considered as integral practise and would not be protected u/a 25 of the Constitution until non-performance of the same would lead to a loss in the glory of that religion. This too is not a very sound reasoning as any Islamic person if does not read namaz, it will not destroy the glory of Islam itself. 

 

·       The practice will be considered integral when the practice was before or at the time of origin of that religion is also laid down by the court is also a difficult test to prove any practice as integral.    

Other SC judgements

In the case of Gandhi v State of Bombay, 1954 SC, the Supreme Court said that no outside authority has any right to say that these are the essential parts of a religion, and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like.

Even in the case of Singh v State of Punjab, 1969 SC, the Supreme Court said that every religion has the autonomy to decide that what are the essential feature and practises, keeping in view its own religious texts.

Right to Conscience

When the court said that this practice is not protected under freedom of religion, then the other ground of relief was asked, i.e., freedom of conscience as protected u/a 25. The court asked for proof of freedom of conscience because conscience is by its very nature is subjective and merely wearing hijab as an overt act of conscience would not be sufficient. As clarified by DR BR Ambedkar that the right to religion is different from freedom of conscience. There is the scope that they both are mutually exclusive. Even by the overt act in furtherance of conscience, the matter does not fall under the right to religion and thus the distinction is maintained. The petitioner could not place any material before the court as they how associate wearing of hijab with their conscience as an overt act. How their wearing of hijab conveys any thought or belief on their part as means of symbolic expression.

But this reasoning is criticised by some scholars as it is a person’s personal right as to when he starts reading namaz. If a person started reading namaz later in his life, then can the court say to him that reading namaz is not an essential practice for you. In a matter of Constitutional rights, there is no doctrine of Waiver present. This doctrine means that if a person was not doing or denied doing something or any practice, then his right to practise is waived by law.

What is freedom of conscience?

It is a freedom of an individual to hold or consider a fact or thought independent of others' viewpoint.

Appeal

It is difficult to say that the Supreme Court will put a stay on the judgement, but this could be tagged to the Sabarimala matter, laid before the Constitutional bench of the SC. I think the law and religion matter is not a very settled matter and we should wait for the Sabarimala judgement for better clarity in this regard.  

Background

Dr BR Ambedkar had said in the Constituent Assembly debate that though everything is governed by religion, but this does not mean that Freedom of Religion will protect every such thing but only those parts which are essential to the religion will be protected and this was later formed as Essential Doctrine by the Indian Court of Law.

Even in the judgement of Triple Talaq (Sharaya Bano v Union of India, 2017 SC), the argument that if anything is in the Quran then only it is essential to practise will lead to trouble because on the same reasoning it can be said that only what is in the Vedas will be essential and it will dilute the importance of Purans, Samrities, Commentaries and Customs formed at a later stage. Every religion goes through a revolution, and it keeps changing. In Christianity, after 500 years of the crucifixion of Jesus Christ, St. Paul had collected the Bible in the form we read today as new testamentary and in Islam also, it was 200 years after the death of Prophet that the Hadith literature was collected in the form we read today. Hence, in the Essentiality Doctrine, one practise is given privilege over the other practices. But religion is not bound to any particular practice, but it includes every such practice or every such practises collectively forms a religion, though some can be less important, and some may be more important.  

Conclusion

I think that giving religious freedom will lead to a better society as it will uphold the individual’s dignity. And whenever the right to religion be denied then it probably led to frustration and depression in society.  This judgment restricts freedom of religion as the High Court is bound to the Religious Practise Test, which is laid down by the Supreme Court. Though there are some religious matters in which the High Courts has given priority to religious freedom as they successfully distinguish them from the Sabarimala judgement and passed the order.   

Authored by, 

Abhinav Bishnoi, (17/03/2022), New Delhi