Wearing of hijab is not an essential religious practice because it is optional, says Karnataka government to HC

THE Karnataka government today took the stand before the Karnataka High Court during the hearing of the hijab case that the concept of essential religious practice would not come within the freedom of conscience, guaranteed by Article 25 of the Constitution of India.

The High Court on Monday continued to hear the petitions relating to the hijab ban in public schools and colleges in the state. The matter was heard by a bench comprising Chief Justice Ritu Raj Awasthi, Justice Krishna S. Dixit, and Justice J.M. Khazi.

During the previous hearings, the counsels for the various petitioners had argued that the ban on hijab was without authority of law, and violative of Articles 14, 19(1)(a), 21 and 25 of the Constitution.

On the last date of hearing, Advocate General Prabhuling K. Navadgi started his arguments on behalf of the state of Karnataka. He had submitted that the impugned Government Notification was innocuous and did not deprive any person of their rights. He had also argued that the notification was validly issued under the relevant provisions of the Karnataka Education Act, and that the wearing of hijab was not an essential practice in Islam.

The court questioned if the College Development Committees had the freedom to prescribe uniform in light of the fact that the government had argued that the impugned order was innocuous and did not ban the wearing of a hijab. To this, the Advocate General replied that the state had formally not taken a stand, and that it would take a decision as and when the situation would require them to do so.

The Chief Justice then asked if the institutions could be regulated by a court order as they were non-statutory bodies. The Advocate General replied that if the institutions were to describe rules against wearing of hijab, the students would argue a violation of Article 25 rights, and accordingly, the court would have to examine the issue.

To buttress his argument, the Advocate General relied on Justice D.Y. Chandrachud's opinion in the Supreme Court's Sabarimala judgment of 2018 in which he had stated that it is ultimately a court which will have to decide whether a religious practice can be enforced under Article 25.

Justice Khazi inquired if the concept of essential religious practice was also applicable to the freedom of conscience guaranteed under Article 25. The Advocate General replied that the concept of freedom of conscience is something which relates to belief or non-belief and what one manifests as their conscience results in their religious practice. He submitted that based on this line of reasoning, the concept of essential religious practice would not come within the freedom of conscience.

Justice Dixit remarked that the secularism which the makers of the Indian Constitution included in our Constitution is not akin to the American Constitution. He explained that it was not a wall between the church and government, and that India as a country oscillates between Sarva Dharma Samabhav on the one hand and Dharma Nirapekshata on the other.

The Advocate General submitted that the law regarding essential religious practice has been settled by the Supreme Court and that Article 25 does not say "essential", but only religious practice. He submitted that Article 25 speaks about protection of religious practices and not of essential religious practices. He argued that it was impossible to define what exactly is meant by the word religion, especially for religions such as Hinduism.

Explaining the Supreme Court's view on the subject, the Advocate General read out relevant passages from the Supreme Court's judgements in the Shiroor Mutt case (1954), The Durgah Committee, Ajmer vs. Syed Hussain Ali (1961), Javed vs. State Of Haryana (2003), Commissioner of Police vs. Acharya J. Avadhuta (2004), Shayara Bano vs. Union Of India (2017), and the Sabirimala case.

The Advocate General submitted that the Supreme Court had laid down the necessary elements of essential practice in the Sabarimala judgement. He submitted that first, one had to prove that the practice was a religious practice; second, it was essential to the religion; third, the practice was not against public order, morality, or health; and fourth, it was not against any other fundamental right.

The Advocate General submitted that the practice of wearing a hijab did not satisfy these four tests laid down in the Sabarimala judgement and accordingly, could not be declared an essential practice.

He further submitted that a practice can only be declared an essential religious practice if the non-adherence of such a practice would result in the change of the religion itself. He also argued that the practice must precede the birth of the religion, or must have evolved alongside the religion to the extent that it has become coextensive with the religion. He also argued that a practice can only be essential if it is of a binding nature and is not optional.

He submitted that in light of the seriousness of the claim made by the petitioners, that is, that the wearing of hijab was an essential practice in Islam, it was for the petitioners to prove that it constituted an essential religious practice. He submitted that the petitioners had not placed any material whatsoever to substantiate their claim for declaration that the wearing of a hijab is an essential religious practice in Islam.

The petitioners had placed reliance on the holy Quran to show that certain practices were essential in Islam. The Advocate General submitted that the Supreme Court had negated such reliance in many judgements. The advocate general relied on Javed vs. State Of Haryana, the Sabirimala case, and other judgements to buttress his argument.

The arguments will continue on Tuesday at 2:30 p.m.