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Unlike the US and Australia where freedom of religion is defined in absolute terms, the freedom of religion under the Constitution of India is subject to restrictions, a full bench of the Karnataka High Court stated in an order on Tuesday while rejecting pleas to protect the right of Muslim girls to wear the hijab in the state’s junior colleges.

The court rejected a batch of petitions filed by students from government colleges in the Udupi region of Karnataka seeking to recognise the hijab as an essential religious practice and to remove restrictions in some state colleges on wearing the hijab in classrooms.

“We are of the considered opinion that wearing of the hijab by Muslim women does not make up an essential religious practice in Islamic faith,” the bench comprising Karnataka Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and J M Khazi said Tuesday.

“We are of the considered opinion that the prescription of a school uniform is a reasonable restriction constitutionally permissible which the students cannot object to,” the bench said.

In its judgment, the court has stated that Article 25 of the Constitution of India, which provides for freedom of religion in the country, has also placed reasonable restrictions on the freedom of religion.

“The First Amendment to the US Constitution confers freedoms in absolute terms and the freedoms granted are the rule, and restrictions on those freedoms are the exceptions evolved by their courts. However, the makers of our Constitution in their wisdom markedly differed from this view,” the bench observed.

“Article 25 of our Constitution begins with the restriction and further incorporates a specific provision i.e., clause (2) that in so many words saves the power of the state to regulate or restrict these freedoms,” the court pointed out. The high court said that the lack of reasonable restrictions on fundamental rights as in India has been commented on by judges in the US.

“Mr Justice Douglas of the US Supreme Court in Kingsley Books Inc vs Brown 66, in a sense, lamented about the absence of a corresponding provision in their Constitution, saying “If we had a provision in our Constitution for ‘reasonable’ regulation of the press such as India has included in hers, there would be room for argument that censorship in the interest of morality would be permissible,” the court said.

“Succinctly put, in the United States and Australia, the freedom of religion was declared in absolute terms and courts had to evolve exceptions to that freedom, whereas in India, Articles 25 and 26 of the Constitution appreciably embody the limits of that freedom,” the bench observed in its 129-page order.

“In a country wherein right to speech and expression is held to heart, if school restrictions are sustainable on the ground of positive discipline and decorum, there is no reason as to why it should be otherwise in our land,” the court stated.

“An extreme argument that the students should be free to choose their attire in the school individually, if countenanced, would only breed indiscipline that may eventually degenerate into chaos in the campus and later in the society at large,” it pointed out.

“Whichever be the religion, whatever is stated in the scriptures, does not become per se mandatory in a wholesale way. That is how the concept of essential religious practice is coined. If everything were to be essential to the religion logically, this very concept would not have taken birth. It is on this premise the apex court in Shayara Bano, proscribed the 1,400-year-old pernicious practice of triple talaq in Islam,” the court observed.

“For India, there is no official religion, in as much as it is not a theocratic state. The state does not extend patronage to any particular religion and thus, it maintains neutrality in the sense that it does not discriminate on the basis of religious identities per se. Ours being a ‘positive secularism’ is not antithesis of religious devoutness but comprises religious tolerance,” it added.

 



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