Resham v State of Karnataka, 2022
(This article is a personal observation of the authoron the Karnataka High Court judgement and does not intent to hurt any religious or moral sentiment)
Judges: Chief Justice Ritu Raj Awasthi, Jts. Krishna Dixit and Jts. JM Kazi
(This article is a personal observation of the authoron the Karnataka High Court judgement and does not intend to hurt any religious or moral sentiment)
Issue:
The main issue before the court was whether the hijab essential religious and cultural practice of Islam
Arguments
The argument by the petitioner was on the ground that Islam does not give the choice and therefore we do not have a choice but to wear hijab. Because as per essential religious practise test laid down by the Supreme Court distinguishes between what is necessary and what is not necessary for any religion. So, when the petitioner argued on the grounds of religion under article 25 of the Constitution. The respondent replied that it is not the essential practice of the Islam religion. And the case was largely made on Article 25 of the Constitution.
It was rather argued by jurist that the arguments should have been under article 21 and 19 and that the people have the right to choose what he or she wants to wear in a democratic country. And whether the authority had the power to issue such circular or not.
Judgement analysis
The HC of Karnataka has passed the judgement where it has found that the hijab is not an essential practice of Islam. On the grounds of discipline and harmony, this ban was upheld. In the case of Indira Nehru Gandhi v Raj Narain, the SC gave the definition of the word ‘secular’ that it means State shall not have any religion on its own, but the persons shall have an equal right to freedom of conscience and right to freely profess, practise and propagate religion.
The Court observed that the Country was secular before 1976 when the word Secular was added in the Preamble by way of the 42nd Constitutional amendment. Constitutional secularism was discussed. Article 25 provides individual rights of freedom of religion has been made subordinate to fundamental rights of the others, i.e., right to equality, non-discrimination etc.
But the HC overlooked article 26 of freedom to manage religious affairs. The sentence “every religious denomination or any section thereof” gives power to the religious right collectively. The Doctrine of Essentiality is developed by the phrase ‘in matter of religion’ in clause (b) of the article. And article 26 is not made subordinate to other fundamental rights of the Constitution.
What are essential and integral religious practise?
The SC gave the answer to the question that what is religion in the judgement of Shirur mutt (1954 AIR 282), that “religion” will cover all rituals and practices “integral” to a religion. and by way of reading the scriptures, it will come to know what is integral and what is not. Bu the trouble was how to read any such scriptures, which was not given in the judgment. The SC should not read any such religious scriptures like it read any law made by the Parliament. The expert opinion should be taken into consideration by the people who hold sound knowledge of this field.