Hijab Ban- Supreme Court Hearing- DAY-8 Live Updates

Justice Dhulia : If we deal with essential religious practice, where is taking us to? If we deal with the issue without discussing the essential religious practice, will it not be easier?

Dave : Yes, but the High Court has discussed.

Justice Dhulia : What is this leading to?

Dave : That essential religious practice was never a ground for judicial pronouncements. Essential practice was used in the context of making a distinction between religious and secular acts. 

Justice Gupta asks if Justice Iyyengar was in majority.

Dave says he was and adds that concurring opinion of a judge in majority judgment is binding.

".. a religion or of the practices of that religion. The phraseology employed cut across and effaced these distinctions"- Dave quotes from Justice Iyyengar's judgment in Sardar Syedna decision. Says these observations are "very important".

"In the face of the language used, no distinction could be drawn between beliefs that were basic to a religion, or religious practices that were considered to be essential by a religious sect, on the one hand, and on the other beliefs and practices that did not form the core of..

"what constitutes an essential part of a religious or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the community as a part of its religion" - Dave quotes from Sardar Syedna.

Dave referring to "Sardar Syedna Taher Saifuddin vs The State Of Bombay" judgment which struck down Bombay Prevention Of Excommunication Act, 1949 on the ground of violating Article 25, 26.

"The contention formulated in such broad terms cannot, we think, be supported" - Dave quotes from Shirur Mutt case. Points out that these observations reject the essential religious practice argument.

"The Attorney-General lays stress upon clause (2)(a) of the article & his contention is that all secular activities, which may be associated with religion but do not really constitute an essential part of it, are amenable to State regulation..."

Dave : Religion was defined for the first time in Shirur Mutt case. The definition applies both to 25(1) and 25(2). Therefore, the Court's rejection of essential religious argument must apply with equal force to Article 25(1).