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Recently, six students were banned from entering a college in Karnataka’s Udupi district for wearing a hijab. The issue throws up legal questions on reading the freedom of religion and whether the right to wear a hijab is constitutionally protected or not.
How is religious freedom protected under the Constitution?
Article 25(1) of the Constitution guarantees the freedom of conscience and the right freely to profess, practise and propagate religion. It is a right that guarantees negative liberty — which means that the state shall ensure that there is no interference or obstacle to exercising this freedom.
However, like all fundamental rights, the state can restrict the right for grounds of public order, decency, morality, health and other state interests.
What is the Supreme Court’s view on Religious Freedom?
The Supreme Court has evolved a practical test of sorts to determine what religious practices can be constitutionally protected and what can be ignored.
In the Shirur Mutt case in 1954, the doctrine of “essentiality” was invented by the Supreme Court. The court held that the term “religion” will cover all rituals and practices “integral” to a religion, and took upon itself the responsibility of determining the essential and non-essential practices of a religion.
The essential religious practice test is a contentious doctrine evolved by the court to protect only such religious practices which were essential and integral to the religion.
Where did the Supreme Court apply the essential religious practices test?
In 2004, the Supreme Court held that the Ananda Marga sect had no fundamental right to perform the Tandava dance in public streets since it did not constitute an essential religious practice of the sect.
In 2016, the Supreme Court upheld the discharge of a Muslim airman from the Indian Air Force for keeping a beard. The court essentially held that keeping a beard was not an essential part of Islamic practices.
What are the court’s rulings on Hijab?
In Amna Bint Basheer v Central Board of Secondary Education (2016), the Kerala High Court held that the practice of wearing a hijab constitutes an essential religious practise but did not quash the dress code prescribed by CBSE. It rather provided additional safeguards, such as examining students wearing full sleeves when needed.
In Fathima Tasneem v State of Kerala (2018), Kerala HC held that collective rights of an institution would be given primacy over the individual rights of the petitioner. The case involved two girls who wanted to wear the headscarf. The school refused to allow the headscarf. However, the court dismissed the appeal as students were no more in the rolls of the respondent-School.
Source: This post is based on the article “Explained: Freedom of religion and attire” published in Indian Express on 5th Feb 2022.