[Hijab Row] Supreme Court's Sabarimala judgment on Essential Religious Practice test is law of the land: State to Karnataka High Court

The Karnataka State government told the Karnataka High Court on Monday that the petitioners in the hijab ban case were claiming that wearing of hijab was an essential religious practice, with a view to bind every Muslim woman to a particular dress code..Making submissions on behalf of the State, Advocate General (AG) Prabhuling Navadgi said,"The petitioners are seeking for a declaration of a particular dress format to become part of religious sanction so as to bind every woman who follows Islamic faith. That is the seriousness of the claim."He also contended that the petitioners have not placed any material on record to substantiate their claim for declaration that wearing of hijab is an essential religious practice.Pertinently, the AG told the Court that the 2018 Sabarimala verdict of the Supreme Court which lays down how to determine essentiality of a religious practice, is currently the law of the land on this issue."Sabarimala judgment is the last of the decision and it can be taken as law of the land as it stands today," he said..Sabarimala judgment is the last of the decision on ERP and it can be taken as law of the land as it stands todayAG Prabhuling Navadgi .The Bench of Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and JM Khazi was hearing a batch of petitions filed by Muslim girl students in the State claiming that they were not being allowed to enter colleges on account of the government order (GO) which effectively bans the wearing of hijab (headscarves)..At the start of today's hearing, Chief Justice Awasthi quizzed AG Navadgi,"What is your stand? Can hijab be permitted in institutions? If institutions permit, then you don't have any objection?""We will take a decision as and when such a situation comes up," was AG Navadgi's response.The Court then referred to the petitioners' suggestion that the students be allowed to wear hijab having the same colour as the uniform prescribed in colleges. However, the AG replied,"The answer is we have not prescribed anything. But as a matter of principle, the answer is in preamble of Karnataka Education Act which is to foster secular environment. So the stand of the State is that anything which introduces religious aspect should not be there."CJ Awasthi then asked a flurry of questions, including,"So should Court now go into Article 25 violation etc if that is the stand of the State government? You are saying college committee will decide. So are we supposed to see what they have done? Since they are not statutory bodies, can they be regulated by court order?"On the aspect of Article 25, AG Navadgi said that the Court must go into it, given that in the event an individual cases comes before the Court in future, the student will claim that their right to freedom of religion will be violated.Justice Khazi then asked the AG about freedom of conscience. "Is Essential Religious Practice also applicable to (freedom of) conscience?""The concept of freedom of conscience is something which relates to belief or non-belief. What you manifest as your conscience results in religious practice," the AG replied..Navadgi went on to cite Dr BR Ambedkar's speech during the Constituent Assembly debates on Article 28, which states that no religion instruction shall be provided in any educational institution wholly maintained out of State funds. He also cited KM Munshi, who asked during the debates whether India should have religion as a right if it is to adopt itself as a secular State.At this point, Justice Dixit pointed out,"The secularism which the makers of our Constitution [spoke about] is not akin to the American Constitution. It is not a wall between Church and government. We oscillate between Sarva Dharma Samabhava on one hand and Dharma Nirapekshata on the other."The AG subsequently discussed the Essential Religious Practices doctrine as expounded by the courts in various decisions. Summing up the judgments, he said that for a practice to get protection under Article 25, it must:- First be proved that it is a religious practice; - Then an "essential" religious practice;- That it is not against public order, morality, health;- And not against any other fundamental right.After taking the Court through the 2018 Sabarimala verdict of the Supreme Court, the AG said that there was a marked a shift in the judicial approach to the doctrine of essential religious practice after it first came about in Shiroor Mutt case. "It now enjoins upon the Court to determine that even if it was "essentially religious", it should be shown that it is "essential to religion"."Sabarimala judgment is the last of the decision and it can be taken as the law of the land as it stands today, AG Navadgi said.He further enumerated the following requirements for a religious practice to be deemed essential:- The practice should be fundamental to that religion; - If that practice is not observed, it would result in change of the religion itself;- The practice must precede the birth of the religion itself. The foundation of religion must be based on that or must be simultaneously there along with the birth of religion. It must be co-extensive with that religion;- It must have a binding nature. It cannot be optional. It has to be compulsive so that if one disobeys, he/she ceases to be part of that religion.He went on to say that whenever reliance was placed on the Quran to show that certain practices were essential, in at least four instances, the Supreme Court negated it..The Court matter will be heard again on Tuesday, February 22 at 2:30 pm..During the last hearing on Friday, AG Navadgi argued that the practice of wearing hijab must pass the test of constitutional morality laid down by the Supreme Court in the judgments in Sabarimala and Triple Talaq cases. He also submitted the following:- The Government Order dated February 5, 2022 is in consonance with the Karnataka Education Act;- Wearing of hijab is not an essential religious practice of Islam;- Right to wear hijab cannot be traced to Article 19(1)(a) of the Constitution..Hijab must pass Constitutional Morality test in Sabarimala, Triple Talaq rulings: State to Karnataka High Court.The petitioners - Muslim girl students from various colleges in Karnataka - approached the High Court after they were denied permission to attend classes on account of wearing hijab. Among the grounds cited in the petition is that the freedom of conscience and the right to religion are both guaranteed by the Constitution, despite which the students were singled out arbitrarily for belonging to the Islamic faith.Further, the manner in which they were ousted created a stigma against them, affecting their mental health as well as their future prospects, it was submitted. It was also claimed that wearing of hijab was an essential part of Islam and enjoys protection under Article 25(1) of the Constitution, which confers the right to freely profess, practise and propagate religion.On February 10, the Court had passed an interim order barring students from wearing hijab, saffron shawls (bhagwa) or use any religious flags while attending classes in Karnataka colleges, till the matter is decided.