"We are of the considered opinion that wearing of hijab by Muslim women does not form a part of essential religious practice in Islamic faith," Chief Justice Awasthi, who headed the full bench of the high court, said reading while out portion of the order. PTI March 15th, 2022
The uniform can exclude any other apparel like bhagwa or blue shawl that may have the visible religious overtones ; Kar HC upholds Hijab Ban
SCC online CASE BRIEFS https://www.scconline.com/blog/post/2022/03/15/the-uniform-can-exclude-any-other-apparel-like-bhagwa-or-blue-shawl-that-may-have-the-visible-religious-overtones/
Is wearing Hijab a matter of conscience?
Conscience is by its very nature subjective. Merely stating that wearing hijab is an overt act of conscience and therefore, asking them to remove hijab would offend conscience, would not be sufficient for treating it as a ground for granting relief. Freedom of conscience as already mentioned above, is in distinction to right to religion as was clarified by Dr. B.R.Ambedkar in the Constituent Assembly Debates. There is scope for the argument that the freedom of conscience and the right to religion are mutually exclusive. Even by overt act, in furtherance of conscience, the matter does not fall into the domain of right to religion and thus, the distinction is maintained. There is no evidence that the petitioners chose to wear their headscarf as a means of conveying any thought or belief on their part or as a means of symbolic expression..
16 pointer report on why wearing of Hijab is not a part of essential religious practice in Islam: Karnataka High Court unfolds https://www.scconline.com/blog/post/2022/03/16/16-pointer-report-on-why-wearing-of-hijab-is-not-a-part-of-essential-religious-practice-in-islam/
Debates on Whatsapp:
JD: Some of those who wear the hijab may consider it an essential part of their religion, others may be wearing it because that it is the way they can go out and get an education given community situation, and still others may wear it because they feel the need to identify with their community.
AA: There are also women who consider themselves Muslim, but will not wear hijab because they do not consider it an essential part of Islam, and resent being bullied.
Each of these cannot be dictated by the State or Law, at least not if the impact of its decision would be to prevent them from getting an education in government schools. It is precisely the vulnerability of such women/girls that needs a "accomodative" stance, when deciding what constitute "uniform", or distraction or indiscipline.. etc..
LJ: And who is to decide what is essential to islam or any other religion? There is a problem with the essentialist argument generally in all matters of faith. It calls for homogeneity, imposition, conformity and the constitution doesnt award protection to any of that. It is required to protect choice, freedoms, autonomy, dignity, which is opposed to the essentialist argument. A constitutional court cannot play cleric.
AA: I think there is also confusion between the Essence of religion and essential practices.
SS: The term "essential", as is being used in the context of the ongoing controversy in Karnataka, is, in fact, a (clever or innovative?) (device) worked out by the Supreme Court.
The Indian Constitution lists certain "fundamental rights", which includes the right to practise religion.
At times, this right comes in conflict with some other right(s).
In the Constitution, there's no order of priority.
So, in order to suppress some religious right(s) - considered unjust/irrational, in favour of some other right(s), that particular religious right(s) is adjudged "inessential" instead of irrational or unjust. (Such adverse judicial determination may raise doubts as regards the legitimacy of that religion itself. Hence, this "device".)
Hence, the rush to claim that hijab is "essential" (part of Islam) in order to obtain the protective cover of "freedom of religion".
Now, hijab - regardless of its status in the Islamic scriptures, doesn't, apparently, harm anybody else; it's, in fact, a rather minor addition to one's dress.
In the subject case, even the conflict with a specified dress code is also very minimal - it's decidedly less conspicuous than a turban and roughly at par with bindi, bangles and the likes.
Hence, fairness demands that the bar for "essentiality" in this particular case should be set much lower.
Accordingly, there is a very strong case in favour of individual choice as regards "essentiality". If an individual considers it as "essential" - obligatory under Islam, that should be duly respected.
It's a fact of life, all over the globe - just not only in India, a huge of number of Muslim women - rightly or wrongly, wear hijab considering it as a mandatory religious requirement.
Like Sikh turban, it's permitted in many non-Muslim countries as a part of various uniforms.
It's not a case of some stray or wayward and whimsical individuals.
The "essentiality" test must take that also into consideration.
And, finally, a synonym for "religion" is "faith" and not "reason".
