United by Constitution, divided by religion

Religion is nowhere defined in the Constitution of India. Yet, there have been too many controversies India has witnessed surrounding fundamental rights connected with religious freedom. The jurisprudential concept of the wall between the church and the State has led us to the concept of secularism which is practised in its various forms across the world. The Indian constitution too is secular but protects religious freedom subject to reasonable restrictions.
The Hijab Verdict
The Karnataka High Court has dealt with the subject of Hijab in a very appropriate manner based on a law that has been already laid down by the Supreme Court and based on the provisions of the Constitution of India.
The High Court has arrived at the finding that the use of Hijab is not an essential religious practice of Islam and, therefore, there is no violation of any fundamental right if the wearing of Hijab is not permitted in educational institutions.
The High Court has also held that the prescription of a uniform is not violative of any fundamental right and therefore the government order to enforce the uniform and ban Hijab is not violative of Articles 14 and 15. Accordingly, the High Court has held that the actions of the educational institutions and the government are justified.
It is interesting to note the same High Court had passed an interim order restraining usage of any religious clothes at educational institutions.
The Past
Historically, the judiciary has restrained various religious practices such as Tandava dance in public on the ground that it is contrary to reasonable restrictions on the constitutional fundamental right of freedom of religion under Article 25. Very recently, Triple Talaq has been held to be violative of the constitutional rights of women and therefore declared illegal. The Indian Constitution states and the Indian judiciary has time and again upheld, that the Freedom of Religion is not an absolute fundamental right and is subject to public order, morality, and health among other reasonable restrictions.
The Hijab Verdict will surely help to maintain some order and uniformity at the level of educational institutions. Had it been, otherwise, it could have meant the death of the concept of uniform in the educational institutions, as disciples of various religions would have started to come in their religious attire to the school.
Is it just about Hijab?
The supporters of Hijab may challenge the Karnataka High Court verdict at the Supreme Court. But the concerted effort by a section of society and activists to give a twist to the subject by connecting the Hijab row with the Right to Equality and Freedom of Expression is disturbing.
India already has witnessed testing times with various aspects of personal laws being challenged in Constitutional courts. The Hindu Personal laws, customs and traditions have been challenged the most and many historic practices have been declared illegal by the judiciary in the name of secularism and constitutional rights.
Time and again, Indians are forced to deal with the question of whether it is the Constitution and the nation first, or does religion take precedence. Debates based on many outdated religious and unconstitutional practices must be put to rest once and for all if India must progress at a reasonable pace both socially and economically.
The attack on the Constitution
As Indians, we all look upon the Indian judiciary and the Constitution to safeguard our fundamental rights and freedoms. In turn, there is a dangerous tendency to attack the Constitution deriving the rights such as freedom of expression and religion from the Constitution itself.
The radical religious forces continue to exert dominance over public behaviour and influence the democracy by way of influencing the voters.
Time for Uniform Civil Code
The implementation of Uniform Civil Code shall put all such chaotic forces to silence. The rights and freedoms of women across religions are urgently required to be brought at par amongst women of all religions and to that of men. The nation will be better off focusing its time, energy, and resources on more productive subjects than those stemming from religious disputes.
The concepts of secularism and uniform civil code go well together, and the concept of equality also fits in naturally with the Uniform Civil Code. Religion will have to stay indoors, and people must accept that religion is a private affair and must not become a hurdle for the progress of the people and the nation. Let Indians be united in a uniform way, by a Uniform Civil Code, and stop moving our constitutional courts over religious matters.

Satya Muley
Satya is a leading Civil & Criminal Law lawyer from Western India.
He practices at Bombay High Court, the Supreme Court and Courts in Pune/Maharashtra & New Delhi.
For any queries or support in legal matters you can reach him at or at Contact Us
Click here to read more about us.