Hijab ban: Can we decide without going into the Essential Religious Practice doctrine, asks Supreme Court

Solicitor General of India, Tushar Mehta alleged that those protesting against the hijab are part of a larger conspiracy.

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A day after senior advocate Dushyant Dave asked the Supreme Court’s division bench comprising Justices Hemant Gupta and Sudhanshu Dhulia to consider the composite culture of India to decide the validity of the ban on the hijab, the Solicitor General, Tushar Mehta earlier today said that the hijab is not an essential religious practice of Islam, and asked the bench to go into this issue, to settle it once and for all, without leaving it to the religion to decide.

The bench continued to hear today a batch of petitions challenging the ban on wearing hijab in educational institutions in Karnataka based on the Karnataka Government Order on Dress Code for Students (‘GO’) and the Karnataka Education Act, 1983, which was upheld by the Karnataka High Court on March 15.

In response to Dave’s arguments that the word ‘religion’ under Article 25(1) of the Constitution is qualified with the word ‘practice’, Mehta called it constitutionally fallacious.

Going into the legality of the GO, Mehta told the bench that it was required for more than one justifiable reason. He told the court, “If the government would not have acted as they did, they could have been guilty of the dereliction of its constitutional duty.”

Mehta referred to the Karnataka Education Act to justify the authority of the state to enact the GO. However, Justice Gupta pointed out that the Act is meant for regulating educational institutions, as is apparent from its Preamble. There is no provision in the Act that says you can enact directions to be followed by students, Justice Gupta questioned Mehta. Mehta referred to Rule 11 of the Karnataka Educational Institutions (Classification, Regulation and Prescription of Curricula etc.,) Rules, 1995 and told the court that the state government has only directed the colleges to bring discipline in a particular format so that unity is not disturbed.

Mehta also informed the court that no girl student was wearing a hijab till 2021. Justice Gupta intervened and referred to one of the writ petitions in which it has been stated that they were wearing hijab and suddenly it was prohibited. Mehta replied, “… it’s an unsubstantiated assertion…

It was only this year when a movement started by the non-government organization, the Popular Front of India on social media, that these girls started wearing the hijab, he alleged.

“This was not a spontaneous act of a few individual children. They were a part of a larger conspiracy and the children were acting as advised.” The government had to intervene because of the public order that was likely to be disturbed, he said.

Justice Dhulia asked what kind of public order this concerns. Mehta submitted that girls were agitating to let them enter the college wearing hijab.

Further, Mehta submitted that the GO is within the statutory powers of the Karnataka government, and the students are bound once they become a part of a disciplinary mechanism unless they can show that an essential religious practice is being denied.

Mehta referred to the Supreme Court’s judgment in Dargah Committee, Ajmer versus Syed Hussain Ali & Ors. (1961), in which the court had said that what an essential religious practice is can be determined by the court. However, Justice Gupta pointed out that there is a conflict between the court’s judgments in Dargah Committee, Ajmer and Commissioner, Hindu Religious Endowments, Madras versus Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954) since the latter leaves it to the religion itself to decide its essential practices.

Mehta submitted the attributes of essential religious practice are already settled, and that the practice must be fundamental to the religion and must be from time immemorial as per the Supreme Court in Commissioner of Police & Ors. versus Acharya Jagdishwaranand Avadhuta & Anr. (2004). A practice that started a few years back, say, 50 years back, is not an essential religious practice, he contended. It must coexist with religion; if the practice is not observed and followed, it could change the foundation of the religion, he further averred.

According to Mehta, not every activity associated with religion, such as, for instance, food and dress, can be characterised as an essential religious practice. The practice has to be compelling, but the petitioners have made no arguments in this regard, he pointed.

The hijab, he said, may be a permissible or ideal practice, but it is not essential, he submitted, since even the mention of it in the Quran does not justify its essentiality.

Mehta gave an example of a person drinking in public and claiming it as a part of their religion. Justice Dhulia intervened and told him that the same will directly come within the purview of Article 19(2) of the Constitution. That is not the same as prohibiting hijab, he said. Justice Gupta also said that such an extreme example is not appropriate.

The bench asked if it could decide the matter without going into the question of essential religious practice. Mehta replied that the court will have to examine that, because what grounds will be violated cannot be left to the religion to decide on its own. Shirur Mutt does not prohibit this court from adjudicating on this, he emphasised. Moreover, the court is not going on its own, as the petitioners in the Karnataka High Court order have themselves argued, he further stated.

The bench will continue to hear the matter tomorrow.

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