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Hijab Ban case: Is it necessary to go into question of essential practice: HC asks AG

The AG told the court that the entire question revolves around whether wearing of hijab falls under Article 25

Sabrangindia 23 Feb 2022

Karnataka High Court
Image Courtesy:thenewsminute.com

During the February 21 hearing dealing with the hijab ban in the state, the Karnataka High Court bench of Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi put forth a question - whether it was necessary for the court to go into the constitutional question of essential religion practice at all?

The bench questioned Advocate General Prabhuling Navadgi who said that the question needs to be answered as it is necessary to know whether or not the institutions can restrict someone’s entry to the institution for wearing hijab. The Advocate General also told the Court that the entire question revolves around whether wearing of hijab falls under Article 25. In this case Udupi Pre-University (PU) College had taken a stand that they will not allow wearing of hijab in the institution.

Can same colour headscarf be worn?

The hearing began with a query from Chief Justice Awasthi that they (Muslim women and students) may be permitted to wear the same colour headdress as permitted in uniform prescribed by the college. The Court wanted to know the stand of the state. The AG clarified his stand by saying, “The Order gives complete autonomy to institutions to decide on uniform, whether students will be allowed to wear dress or apparel which could be a symbol of religion. The stand of the state is the element of introducing religious dress should not be there in uniform.”

Conscience vs. religion

The Court said that conscience and religion are two different aspects but they also mutually exist. Justice Dixit pointed out that in the Constituent Assembly, there was a debate on whether to include "conscience" in Article 25. Dr. Babasaheb Ambedkar suggested it to be included, saying even people who do not believe in God are also entitled to Article 25 protection. Unless conscience is taken over by an overt act, until then it is conscience, once it is an act it becomes religion, to which the Court and Advocate General both agreed.

The Chief Justice said conscience and religion are two different things. One can be highly religious but not have a conscience and others may have a conscience but not be religious.

Essential practice

The AG then referred to Ajmer Dargah case  (AIR 1961 SC 1402) whereby the Supreme Court held:

“Whilst we are dealing with this point it may not be out of place incidentally to strike a note of caution and Observe that in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices.”

AG also referred to Shayara Bano (Triple Talaq) case, from which he quoted, “A practice claimed to be essential must be mandatory and not optional.”

Advocate General carved out five principles (from the cases he referred) for the present case:

  1. The practice must be fundamental to the religion.
  2. If the practice is not followed, it will change the religion itself.
  3. Practice must precede the birth of religion. Foundation of religion must be based on that. It must be co-existent with the religion.
  4. Binding nature. If it is optional, then it is not essential. If wearing it is not obligatory, then it is not essential.

He further made a submission to the Court that the burden is on the petitioners to show that hijab satisfies all tests of essential religious practice. He also requested the Court to have a look at the pleadings made by the Petitioners, in which there were no averments.

Different interpretations of court order

The Advocate General also submitted that he received a letter from Adv. Mohammad Tahir, alleging some excesses committed by authorities with respect to Court order. Adv. Tahir had earlier made a submission to the Court that, “Every department is interpreting the order differently. Yesterday, the Minority Department passed an order. Even in Urdu colleges it is enforced. Policemen are deployed at gates and are threatening Muslim girls. The Order said classroom. But at gates students are stopped.” The Advocate General told the Court that he had spoken to the Principal Secretary of the education department and soon a meeting of all concerned people will be convened. He gave an assurance to the court that a report will be submitted to the Court and Adv. Mohammad Tahir.

Adv. G R Mohan made his submission to the Court that a request was made to the Child Rights Commission to provide a separate room for removing hijab, not in an open place.

Where it all started

On February 18, the Advocate General told the Court about how and when this Hijab ban story started. He referred to a resolution passed in 2013, when Uniforms were prescribed.  The dress code became an issue on December 31, 2021, when some students of Girls College approached the principal and insisted on wearing hijab in classrooms. College Development Committees (CDC) wanted to examine the situation, which was chaired by MLA on January 1, 2022.

A meeting was held by College Development Committees with the parents of the students in which they (parents) were told that Uniform system has existed since 1985. This meeting was not helpful and hence the protest continued. This led to a communication from the state to the director. Another resolution was passed by the College Development Committees that requested the parents to follow the uniform.

The Advocate General was told that the unrest continued in the institution and this led to another resolution being passed by College Development Committees. This reiterated the same thing, except that it made a positive assertion that children should not wear the hijab. This resolution notes something very important. It was subtly informed that students from other communities are studying in the college. The concern of the committee was seen in that. By that time the State was informed that the issue was spreading to other institutions. The issue was not localised. Protest and unrest went on. So in that background, the impugned order of February 5 was passed.

The Advocate General pointed out that Article 25(1) starts with "Subject to ....” The fundamental right starts with a non-obstante clause, 25(2) does not prevent states from making a law to regulate or restrict. He further submitted that the series of rights under Article 19 can be regulated only by a "law to be made by the State". But "law to be made by the State" is not present in Article 25, and this right is subject to "public order, morality and health".

The video of the hearing may be viewed here:

Related:

Take down Fake News story on bombing in Bengal school: CJP to News18
Hijab Ban: Identity politics or body policing?
K’taka HC to consider mediation only if parties agree to it
Karnataka: Minority dept bars hijab, saffron scarves in govt schools, PUs

Hijab Ban case: Is it necessary to go into question of essential practice: HC asks AG

The AG told the court that the entire question revolves around whether wearing of hijab falls under Article 25

Karnataka High Court
Image Courtesy:thenewsminute.com

During the February 21 hearing dealing with the hijab ban in the state, the Karnataka High Court bench of Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi put forth a question - whether it was necessary for the court to go into the constitutional question of essential religion practice at all?

The bench questioned Advocate General Prabhuling Navadgi who said that the question needs to be answered as it is necessary to know whether or not the institutions can restrict someone’s entry to the institution for wearing hijab. The Advocate General also told the Court that the entire question revolves around whether wearing of hijab falls under Article 25. In this case Udupi Pre-University (PU) College had taken a stand that they will not allow wearing of hijab in the institution.

Can same colour headscarf be worn?

The hearing began with a query from Chief Justice Awasthi that they (Muslim women and students) may be permitted to wear the same colour headdress as permitted in uniform prescribed by the college. The Court wanted to know the stand of the state. The AG clarified his stand by saying, “The Order gives complete autonomy to institutions to decide on uniform, whether students will be allowed to wear dress or apparel which could be a symbol of religion. The stand of the state is the element of introducing religious dress should not be there in uniform.”

Conscience vs. religion

The Court said that conscience and religion are two different aspects but they also mutually exist. Justice Dixit pointed out that in the Constituent Assembly, there was a debate on whether to include "conscience" in Article 25. Dr. Babasaheb Ambedkar suggested it to be included, saying even people who do not believe in God are also entitled to Article 25 protection. Unless conscience is taken over by an overt act, until then it is conscience, once it is an act it becomes religion, to which the Court and Advocate General both agreed.

The Chief Justice said conscience and religion are two different things. One can be highly religious but not have a conscience and others may have a conscience but not be religious.

Essential practice

The AG then referred to Ajmer Dargah case  (AIR 1961 SC 1402) whereby the Supreme Court held:

“Whilst we are dealing with this point it may not be out of place incidentally to strike a note of caution and Observe that in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices.”

AG also referred to Shayara Bano (Triple Talaq) case, from which he quoted, “A practice claimed to be essential must be mandatory and not optional.”

Advocate General carved out five principles (from the cases he referred) for the present case:

  1. The practice must be fundamental to the religion.
  2. If the practice is not followed, it will change the religion itself.
  3. Practice must precede the birth of religion. Foundation of religion must be based on that. It must be co-existent with the religion.
  4. Binding nature. If it is optional, then it is not essential. If wearing it is not obligatory, then it is not essential.

He further made a submission to the Court that the burden is on the petitioners to show that hijab satisfies all tests of essential religious practice. He also requested the Court to have a look at the pleadings made by the Petitioners, in which there were no averments.

Different interpretations of court order

The Advocate General also submitted that he received a letter from Adv. Mohammad Tahir, alleging some excesses committed by authorities with respect to Court order. Adv. Tahir had earlier made a submission to the Court that, “Every department is interpreting the order differently. Yesterday, the Minority Department passed an order. Even in Urdu colleges it is enforced. Policemen are deployed at gates and are threatening Muslim girls. The Order said classroom. But at gates students are stopped.” The Advocate General told the Court that he had spoken to the Principal Secretary of the education department and soon a meeting of all concerned people will be convened. He gave an assurance to the court that a report will be submitted to the Court and Adv. Mohammad Tahir.

Adv. G R Mohan made his submission to the Court that a request was made to the Child Rights Commission to provide a separate room for removing hijab, not in an open place.

Where it all started

On February 18, the Advocate General told the Court about how and when this Hijab ban story started. He referred to a resolution passed in 2013, when Uniforms were prescribed.  The dress code became an issue on December 31, 2021, when some students of Girls College approached the principal and insisted on wearing hijab in classrooms. College Development Committees (CDC) wanted to examine the situation, which was chaired by MLA on January 1, 2022.

A meeting was held by College Development Committees with the parents of the students in which they (parents) were told that Uniform system has existed since 1985. This meeting was not helpful and hence the protest continued. This led to a communication from the state to the director. Another resolution was passed by the College Development Committees that requested the parents to follow the uniform.

The Advocate General was told that the unrest continued in the institution and this led to another resolution being passed by College Development Committees. This reiterated the same thing, except that it made a positive assertion that children should not wear the hijab. This resolution notes something very important. It was subtly informed that students from other communities are studying in the college. The concern of the committee was seen in that. By that time the State was informed that the issue was spreading to other institutions. The issue was not localised. Protest and unrest went on. So in that background, the impugned order of February 5 was passed.

The Advocate General pointed out that Article 25(1) starts with "Subject to ....” The fundamental right starts with a non-obstante clause, 25(2) does not prevent states from making a law to regulate or restrict. He further submitted that the series of rights under Article 19 can be regulated only by a "law to be made by the State". But "law to be made by the State" is not present in Article 25, and this right is subject to "public order, morality and health".

The video of the hearing may be viewed here:

Related:

Take down Fake News story on bombing in Bengal school: CJP to News18
Hijab Ban: Identity politics or body policing?
K’taka HC to consider mediation only if parties agree to it
Karnataka: Minority dept bars hijab, saffron scarves in govt schools, PUs

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