There exists a fundamental right to “propagate” one’s religious faith, this is guaranteed through the application of Articles 25-28 and the Preamble to the Constitution. The Supreme Court of India has deliberately declared India to be a secular state since the adoption of the Constitution, it is regarded that what actually was done through the 1976 amendment is to state explicitly what was earlier contained implicitly under Article 25 to 28. Through consistent jurisprudence, it is unambiguous to understand that Articles 14, 15, 19, 21, 25, 28 have promoted the freedom of propagation. However, unlike in countries such as the US and Australia, freedom of religion under the Constitution of India is subject to reasonable restrictions.

Accordingly, an Essential Practice test has been devised by the Supreme Court to determine which religious practices are essential or fundamental to a particular religion and which are just superstitions. However, this is regarded to be a debatable test and there are several questions about its relevance in a secular state owing to its arbitrary application. Nevertheless, the Supreme Court has been the sole decision maker with regards to essential religious practices.

In such cases of religious importance, it is also important to consider the concept of – ‘Constitutional Morality’ – a judiciary invented term which gives too much power in the hands of the judiciary. As such, the doctrine of basic structure confers on the judiciary excessive powers to interpret the Constitution and the discretion to decide anything as basic structure as there is no strict formula for deciding the same.

Accordingly, it is observed in the current scenario that the Court is of the opinion that wearing of the hijab by Muslim women does not make up an essential religious practice in Islamic faith. Additionally, in 2017, the Supreme Court in the Shayara Bano case proclaimed triple talaq to be unconstitutional and moreover held that it does not fall within the purview of an essential practice of Islam.

Here the deliberation of what constitutes “essential practices” and what does not fall within the meaning of an “essential practice” comes into the picture. In the same vein as of the Supreme Court, the High Court of Karnataka’s ratio of the judgement is premised on the ground that – firstly, whatever the scriptures state or whatever may be the religious practices of every religion, does not per se become mandatory as a whole.

It is for this purpose that the whole concept of essential religious practices has been coined. Secondly, the Court is of the opinion that wearing of the Hijab is merely for cultural reasons and has nothing to do with religion.

Moreover, the current subject matter also dwells into the issue of whether the wearing of Hijab into an educational institution intervenes with the wearing of a prescribed uniform and whether this is an infringement of Article 19 (1)(a), to this the Court is of the opinion that there would breed a sense a social separateness among the students who wear the Hijab with the uniform and those who do not wear the Hijab. An educational institution’s ultimate aim is to impart knowledge and encourage harmony among the students. Moreover, prescribing a uniform within an institution is a reasonable restriction and is constitutionally permissible, since such a restriction is only within the school and does not exist outside the institution.