Essential Religious Practise

Source: Bombay High Court 

Why in News? 

A bench of Justice Rajesh S. Patil and Justice A.S. Chandurkar dismissed the writ petition filed by nine students against the dress code requiring them to follow a dress code which precluded them from donning a hijab or a Nakab.  

• The Bombay High Court dismissed the writ petition in the case of Zainab Abdul Qayyum Choudhary & Ors v. Chembur Trombay Education Society's NG Acharya and DK Marathe College and Ors.  

What is the Background of Zainab Abdul Qayyum Choudhary & Ors v. Chembur Trombay Education Society's NG Acharya and DK Marathe College and Ors. Case? 

• Nine Students pursuing their second and third year education for undergraduate courses at the College run by the first respondent – Chembur Trombay Education Society have raised a challenge to the Instructions issued to students requiring them to follow the prescribed dress code. 
• In addition, a notice-cum-whatsapp message dated 1st May 2024 issuing instructions in the matter of following the dress code is also under challenge. 
• The petitioners allege that the prescription of dress code as a result of which they are restrained from donning a Hijab or Nakab is arbitrary and discriminatory and is violative of Article 19(1)(a) and Article 25 of the Constitution of India, 1950 (COI). 

What were the Court’s Observations? 

• The Court observed that a similar matter was presented before the Full Bench of Karnataka High Court (Resham v. State of Karnataka) where the Court held that the dress code prescribed was intended to treat the students as one homogeneous class to serve constitutional secularism. 
  • The Bombay High Court agreed with the above view taken by the full bench of Karnataka High Court. 
• The Bombay High Court observed that the regulation of dress code is an exercise towards maintaining discipline in the institution and this right flows from Article 19(1)(g) and Article 26 of the COI.  
• Further, the Court observed that the object behind the prescription of the dress code is that the student’s religion is not revealed. 
• It was observed that the administration and management of the college had the fundamental right to administer educational institution under Article 19(1)(g) and in exercise of that right and with the objective that education can be seriously pursued the instruction has been issued. 
• Regarding the issue of hijab being a part of essential religious practice, the Court held that except for stating that the same constitutes an essential religious practice on the basis of the English translation of Kanz-ul-Iman and Suman Abu Dawud, there is no material placed to uphold the petitioners’ contention that donning of Hijab and Nakab is an essential religious practice.    

What is Freedom of Religion? 

• The right to freedom of religion is covered under Article 25-Article 28 of COI. 
• Article 25(1) provides that subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. 
  • Article 25(2) provides that nothing in this article shall affect the operation of any existing law or prevent the State from making any law— 
    • regulating or restricting any economic, financial, political or other secular activity which maybe associated with religious practice; 
    • providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. 
    • Explanation I.—The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. 
    • Explanation II.—In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly. 
• Article 26 provides that Subject to public order, morality and health, every religious denomination or any section thereof shall have the right— 
  • to establish and maintain institutions for religious and charitable purposes; 
  • to manage its own affairs in matters of religion; 
  • to own and acquire movable and immovable property; and 
  • to administer such property in accordance with law. 
• Article 27 provides that no person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. 
• Article 28 provides for freedom as to attendance at religious instruction or religious worship in certain educational institutions. 
  • No religious instruction shall be provided in any educational institution wholly maintained out of State funds. 
  • Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution. 
  • No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto. 

What is the Concept of Essential Religious Practice? 

• The Commissioner, Hindu Religious Endowments, Madras v. Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954) 
  • The Supreme Court in this case held that what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. 
  • If the tenets of any religious sect of the Hindus prescribe 
    • that offerings of food should be given to the idol at particular hours of the day 
    • that periodical ceremonies should be performed in a certain way at certain periods of the year 
    • that there should be daily recital of sacred texts or oblations to the sacred fire 
    • All these would be regarded as parts of religion 
• Commissioner of Police and others v. Acharya J. Avadhuta (2004) 
  • In this case the Court laid down the test as to what would constitute an essential religious practise.  
  • The Court held “Essential part of religion means the core beliefs upon which a religion is founded. Essential practice means those practices that are fundamental to follow a religious belief.  
    • It is upon the cornerstone of essential parts or practices that the superstructure of religion is built. Without which, a religion will be no religion.  
    • Test to determine whether a part or practice is essential to the religion is to find out whether the nature of religion will be changed without that part or practice.  
    • If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part.  
    • There cannot be additions or subtractions to such part. 
    • Because it is the very essence of that religion and alterations will change its fundamental character. It is such permanent essential parts is what is protected by the Constitution.”