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Proscription of Hijab in campuses of educational institutions is ad idem with the spirits of the Constitution of India, rules the unanimous fifty-five-page order of a three-judge Bench of Karnataka HC headed by CJ RR Awasthi.
The other judges on the Bench are Justices KS Dixit and JM Khazi.
The crux of the judgement has been that Hijab is an essential cultural practice, not religious. Moreover, the order did mention that even the essential religious practice should associate with the values of the Indian Constitution.
"A person who seeks refuge under the umbrella of Article 25 of the Constitution has to demonstrate not only essential religious practice but also its engagement with the Constitutional values," the Order maintained.
The Bench has also outlined the spirit of the Indian Constitution, especially when a section of citizens of the country took cudgels to the ban by citing violation of Articles 19 and 25.
"The spirit of our Constitution is of 'equal opportunity' of 'public participation' and 'positive secularism', " the Order noted.
What Is Positive Secularism?
The HC Bench quoted the words of Jurist HM Seervai's "Indian Secularism oscillates between Sarvadharma Sambhava and Dharma Nirepekshata.
In the matter of Praveen Togadia Vs State of Karnataka, Court has interpreted the spirit of Indian Constitution as 'Positive Securalism' - not an antithesis to religious devoutness but comprises in religious tolerance.
How Karnataka HC Arrived At Its Order?
Before delivering the all-important verdict, the three-judge Bench of Karnataka HC has applied the 'Fact Matrix' on the following three core considerations.
- Is wearing hijab/head-scarf a part of ‘essential religious practice’ in
Islamic Faith and, therefore, protected under Article 25 of the Constitution? - Does the prescription of school uniform violative of petitioners' Fundamental Rights guaranteed under Articles, 19(1)(a), (freedom of expression) and 21, (right to privacy) of the Constitution?
- Has the Karnataka government order dated Feb 5 violated Articles 14 (right to equality) & 15 (prohibits discrimination on grounds of religion, race, caste, sex and creed) of the Constitution?
How Sikhs Were Allowed Wear Turban?
In its order, the Karnataka HC has detailed that Article 25 of the Indian Constitution mandates for freedom of conscience and free profession, practice and propagation of religion.
The Order says the above freedom is subject to the following conditions:
- Public Order
- There is no bar on State to make laws to regulate/restrict any economic, political, financial or other secular activity associated with the religious practice.
- In its explanation, the Constitution has said, "The wearing of turban and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion."
The HC order then said, "This Article guarantees that every person in India shall have the freedom of conscience and also the right to profess, practise and propagate religion. It is relevant
to mention that unlike Article 29, this article does not mention ‘culture’ as such, which
arguably may share a common border with religion."
Turban and kirpans are thus, essential religious practices of the Sikh religion.
What Is Essential Religious Practice (ERP)?
Quoting the earlier Orders in Acharya Jagdishewara Avaduta case (Ananda Margis), the HC said it was clearly spelt then that the protection guaranteed under Articles 25 and 26 of the Constitution is not confined to matters of doctrine or belief but extends to acts done in pursuance of religion and, therefore, contains a guarantee for rituals, observances, ceremonies and modes of
worship which is an essential or integral part of religion.
Simply put, for a practice to be denoted as religiously essential, there should be supporting evidence to it like doctrines, practices, beliefs and historical background.
And above all, the HC said, "Essential practice means those practices that are fundamental to follow a religious belief."
How Hijab Is Not ERP?
The Bench first quoted the Holy Quran. It said, "What Prophet had appreciably said at sūra (ii) verse 256 in Holy Quran: ‘Let there be no compulsion in religion..."
- As per Indian Jurist Abdullah Yusuf Ali's authoritative works on Quran, Hijab word is not mentioned in Quran.
- He further wrote that for Muslim women generally, no screen or hijab (Purdah) is mentioned, but only a veil to cover the bosom, and modesty in dress. The screen was a special feature of honor for the Prophet’s household, introduced about five or six years
before his death. - In his work, he opined that this rule was not absolute - if for any reason it could not be observed, God is Oft. Returning, Most Merciful.
Based on the above, the Karnataka HC Order has said the following.
"Thus, there is sufficient intrinsic material within the scripture itself to support the view that wearing hijab has been only recommendatory, it at all it is."
The HC Bench also referred to a judgement of the Division Bench of Bombay HC, which ruled the following on Muslim girl's right to wear hijab. (The school was exclusively for girls)
"It cannot be said to in any manner acting inconsistently with the aforesaid verse 31 for violating any injunction provided in Holy Quran. It is not an obligatory overt act enjoined by Muslim religion that a girl studying in all girl section must wear head-covering. The essence of Muslim religion or Islam cannot be said to have been interfered with by directing petitioner not to wear head-scarf in the school.”
Hijab Not Freedom Of Conscience
As per the HC order, in the Constituent Assembly debates, Father of Constitution BR Ambedkar had observed that the freedom of conscience and the right to religion are mutually exclusive. Freedom of conscience is at the mental level, not outward behaviour.
The Final Fact Matrix
The Bench relied on an SC judgement that had clearly outlined the following.
- Matters that are essential to religious faith or belief; have to be adjudged on the evidence borne out by the record.
The Karnataka HC Bench then observed that there is absolutely no material placed on record to prima facie show that wearing of hijab is a part of essential religious practice in Islam and that the petitioners have been wearing hijab from the beginning.
