Hijab

A person who seeks refuge under umbrella of Article 25 has to demonstrate not only ‘essential religious practice’ but also its engagement with constitutional values. There is absolutely no material placed on record to prima facie show wearing of Hijab is a part of an ‘essential religious practice’ in Islam. It is not so, if alleged practice of wearing Hijab is not adhered to, Islam loses its glory and it ceases to be a religion. We are of considered opinion, wearing of Hijab does not form a part of ‘essential religious practice’ in Islamic faith. Hijab nearly translates to partition, screen or curtain. There are numerous dimensions of understanding usage of Hijab: visual, spatial, ethical and moral. At most, practice of wearing this apparel may have something to do with culture but certainly not with religion. What is not religiously made obligatory cannot be made a quintessential aspect of religion through public agitations or by passionate arguments.

Merely stating, wearing Hijab is an ‘overt act of conscience’, would not be sufficient for treating it as a ground for granting relief. Even by an ‘overt act’, in furtherance of ‘conscience’, matter does not fall into domain of ‘right to religion’. No material is placed before us for evaluation and determination of pleaded ‘conscience’. Bijoe Emmanuel v. State Of Kerala, (1986) 3 SCC 615 is not best for drawing a proposition essentially founded on ‘freedom of conscience’.

A prescription of school uniform is a constitutionally permissible reasonable restriction which students cannot object to. Adherence to dress code is mandatory for students. Two categories of  students, those who wear uniform with Hijab and those who do it without, would establish a sense of ‘social-separateness’, which is not desirable. Extent of autonomy is enormous at home. However, in ‘qualified public places’, freedom of individuals is curtailed. It is too far-fetched to argue, school dress code militates fundamental freedoms guaranteed under Articles 14, 15, 19, 21, 25.

Hon’ble High Court of Karnataka, Smt. Resham v. State of Karnataka, 15/03/2022.