Unlike in the USA, freedom of religion in India is not absolute: Karnataka HC in hijab series verdict


Unlike the US and Australia, where religious freedom is absolutely defined, religious freedom is subject to restrictions under India’s constitution, a full chamber of the Karnataka Supreme Court said in an order on Tuesday, while dismissing pleas to protect the rights of Muslim girls to wear the hijab in the state’s junior colleges.

The court rejected a series of petitions filed by students at state colleges in the Udupi region of Karnataka seeking to recognize hijab as an essential religious practice and to lift restrictions in some state colleges on wearing hijab in classrooms.

“It is our considered opinion that the wearing of hijab by Muslim women does not constitute an essential religious practice in the Islamic faith,” said the bench, composed of Chief Justice of Karnataka Ritu Raj Awasthi and Justices Krishna S. Dixit and JM Khazi, on Tuesday.

“We are of the justified opinion that the regulation of a school uniform represents a constitutionally permissible, reasonable restriction that the students cannot object to,” said the Senate.

In its ruling, the court found that Article 25 of the Constitution of India, which provides for freedom of religion in the country, also appropriately restricts freedom of religion.

“The First Amendment to the US Constitution grants liberties in absolute terms, and the liberties granted are the rule and limitations on those liberties are the exceptions developed by its courts. However, the wisdom of the creators of our Constitution differed significantly from this view,” the bank noted.

“Article 25 of our Constitution begins with limitation and further contains a specific provision, ie, paragraph (2), which in so many words rescues the power of the state to regulate or limit these freedoms,” the court noted. The Supreme Court said the lack of adequate limitations on fundamental rights, as in India, had been commented on by judges in the US.

“In a manner of lamenting the lack of such a provision in their Constitution, Justice Douglas of the US Supreme Court in Kingsley Books Inc v. Brown 66 said, ‘If we have in our Constitution a provision for ‘reasonable’ regulation of the press as it does India into theirs, there would be room for arguments that censorship in the interests of morality would be permissible,” the court said.

“In short, in the United States and Australia religious liberty has been declared in absolute terms and courts have had to develop exceptions to that liberty, while in India Articles 25 and 26 of the Constitution clearly embody the limits of that liberty,” the Bank in its 129 – Observed page order.

“In a country where the right of speech and expression is at heart, there is no reason why our country should be any different if school restrictions based on positive discipline and decency are tolerable,” the court noted.

“An extreme argument that students should be free in their choice of dress at school, if supported, would only lead to indiscipline that can eventually lead to chaos on campus and later in society at large,” she stressed.

“Whatever religion, whatever is in the scriptures, is not binding per se. This is how the term essential religious practice is coined. If everything were logically essential to religion, this concept would not have arisen. Under this premise, the Supreme Court in Shayara Bano has banned the 1,400-year-old harmful practice of the triple talaq in Islam,” the court noted.

“India has no official religion as it is not a theocratic state. The state does not extend patronage to any particular religion and therefore maintains neutrality in the sense that it does not discriminate on the basis of religious identities per se. Being ‘positive secularism’ is not opposed to religious piety, but embraces religious tolerance,” she added.


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