Not many days back, a new controversy sparked fire in Karnataka which,
reflecting the times we live in, again involved the issue relating to religion.
Constant attacks on religious beliefs and faiths have become a frequent issue in
India within the past few years and these cases are creating precedents over
precedents on a similar ground.
The recent controversy rose in Karnataka when the State Government issued a GO
(Government Order) putting a ban on headscarves in Pre-University Colleges. In
pursuance to this GO, the Government Colleges denied entry to Muslim girls
wearing a Hijab. The reason that the State cited for the imposition of such a
restriction was that such clothes create discrimination and affect equality,
integrity as well as public law and order.
They came through the Karnataka
Education Act, 1983 and hence stated that a uniform style of clothing needs to
be worn by the students. The ban started from Udupi, Karnataka and thereon
spread to all other colleges showing a similar response towards Muslim students
As a consequence of such a ban being imposed, a Muslim girl filed a petition
before the Karnataka High Court challenging such a discriminatory GO.
Interestingly, this gave rise to a substantial question of law as to whether
there is a right to wear hijab in an educational institution under Article 25 of
the Constitution. To this, affirmative arguments were made and it was pleaded
that wearing Hijab is an essential religious practice in Islam.
Considering the fact that essential religious practice
falls under the purview of Article 25
of the Constitution, the State Government cannot take over this right in any
manner. Upon a bare reading of Article 25(1), one comes across the words "all
persons are equally entitled to freedom of conscience and the right freely to
profess, practise and propagate religion". Given the fact that Hijab is
considered to be an essential religious practice, the freedom to adorn it is
clearly stated in Article 25(1) and the State is encumbered with the duty to
protect this right.
It was also contended that the right to wear a dress is a facet of the
fundamental right to speech and expression guaranteed under Article 19(1)(a),
and threshold of '\public order
should be extremely high to impose any
restriction thereto under Article 19(2). Although, public order, morality
are covered under the purview of reasonable restrictions to
Fundamental Rights in the Constitution, wearing of a head-scarf does not seem to
be covered under any of these restrictions.
In order to understand the essential religious practice
, it may be wise to go
back to the well-noted case of 1954 namely The Commissioner, Hindu Religious
Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Shri Shirur
 (famously known as The Shirur Mutt Case
In this case, it was held as
"A religious denomination, or organization enjoys complete autonomy in
the matter of deciding as to what rites and ceremonies are essential according
to the tenets of the religion they hold and no outside authority has any
jurisdiction to interfere with their decision in such matters."
By referring to the phrase "complete autonomy", one may perceive that adherents
to a particular religion have absolute freedom to profess anything and
everything which forms a part of their religion, according to their own beliefs.
However, that is not true; and this has been clearly reflected in the case of Shayara
Bano v. Union of India
. In this case, the Apex Court had made it outrightly
clear that an arbitrary act cannot be considered as an essential religious
The Court held as follows:
"Since Article 25(1) is subject to Part III of the Constitution, as
such, it was liable to be in consonance with, and not violative of the rights
conferred through Articles 14, 15 and 21 of the Constitution. Since the practice
clearly violates the fundamental rights expressed in the
above Articles, it was submitted, that it be declared as unconstitutional."
Similarly, in the case of State of W.B. v. Ashutosh Lahiri
Supreme Court had held the following:
"Sacrifice of any animal by Muslims for the religious purpose on
BakrI'd does not include slaughtering of cows as the only way of carrying out
that sacrifice. Slaughtering of cows on BakrI'd is neither essential to nor
necessarily required as part of the religious ceremony. An optional religious
practice is not covered by Article 25(1)."
Hence, it is not always a case that the judiciary provides an undeterred
wideness to the term essential religious practice
. Keeping this in mind,
wearing of Hijab is a part of the religion of Islam as it is followed worldwide
and is recognised as such globally. On the face of it, students wearing Hijab to
their schools or colleges as a form of respect towards their own religion or
community does not seem to be even remotely affecting the reasonable
restrictions to the Fundamental Rights of the Constitution.
Throughout this entire issue, it has been extremely difficult to understand why
Hijab is disturbing public law and order specifically in educational
institutions. A Committee can specify the uniform but it doesn't seem fair to
specify the manner in which it is required to be adorned. Covering the head is a
traditional get-up in many religious customs but, when the specification of head scarves
comes into picture, particularly pointing towards Hijab, it
targets one specific religion and that is discrimination on the basis of
The Cambridge English Dictionary defines equality as "the right of
different groups of people to have a similar social position and receive the
same treatment". Irony laughs in our faces, as these days, we distinguish among
people in the name of equality.
Written By: Dr Farrukh Khan
- 1954 AIR 282
- (2017) 9 SCC 1
- (1995) 1 SCC 189
is an Advocate and Managing Partner of Law
Firm- Diwan Advocates.