State Hasn't Banned Hijab, Says Karnataka AG; If Institutions Permit, Will You Object? High Court Asks

"The operative portion of the GO leaves it to the institutions", the AG submitted.

"If institutions permit hijab, you have objections?", the CJ asked further

"If the institutions are to permit, we would possibly take a decision as and when the issue arises...", the AG responded.

"You have to take a stand", the CJI reiterated.

"It is argued that they may be permitted to wear the same colour headdress as permitted in uniform prescribed by the college. We want to know the stand of the state? Suppose if they are wearing duppata which is part of uniform, can it be allowed?", the CJ asked further.

"My answer is that we have not prescribed anything. The Order , it gives complete autonomy to institution to decide uniform. Whether students be allowed to wear dress or apprarel which could be symbol of religion, the stand of the state is.. element of introducing religious dress should not be there in uniform. As a matter of principle, the answer is in preamble of Karnataka Education Act which is to foster secular environment", the AG said.

It may be recalled that on the last hearing date (February 18), the AG had conceded that the GO could have been worded in a better manner and the references to hijab could have been avoided.

"On a better advise, these could have been avoided. But that stage has passed," the AG had submitted then. The AG had also said that the draftsman of the GO went "over enthusiastic" by referring to unity and public order in it.  

Why should Court decide on Article 25 if state has not banned hijab? HC asks

If that is the stand of the State, the CJ asked, whether it was necessary to go into the constitutional question if hijab was essential religious practice.

The AG said that the question might be necessary as institutions can bar hijab. He submitted that in this case, the Udupi Pre-University College has taken a stand that we will not allow wearing of hijab in the institution. So, this issue might have to be gone into by the Court.

"The second issue (ERP) might be necessary because of this. Let us say this institution is before your lordships. The question that would be posed can you prevent someone from entering the institution for wearing hijab.

If lordships are to decide that wearing of hijab does not fall under Article 25, then it would be different for students and institution. The entire question revolves around whether wearing of hijab falls under Article 25."

"In Feb 5 order (GO), we do not decide anything. I say so because, from Shirur mutt case it has evolved, State unless it is a secular activity should not involve in religious practises…If we had decided the hijab cannot be worn, it would have been seriously challenged on the ground that State has interfered in a religious matter."

He relied on Justice DY Chandrachud's decision in Sabarimala case to submit that a Constitutional court has an important role to decide whether a religious practice can be permitted the protection under Article 25.

"GO is innocuous and it is consciously so. This question, controversy would not have arisen. If petitioners would have come and said the college is not permitting us to wear hijab as a head scarf, it is different. But they want to wear this head scarf as a religious symbol."

The Court pointed out that College Development Committees are not statutory bodies (as they are created under a Government Circular), and that private institutions may not be amenable to writ jurisdiction.

In the case of Mohd. Hanif Quareshi & Others vs The State Of Bihar, it was held that what is optional does not constitute ERP.

In the case of Javed & Ors vs State Of Haryana & Ors, the Court denied the proposition that Quran protects plurality of marriages.

In the case of Dr. M. Ismail Faruqui v. Union of India (Babri Masjid case) the Supreme Court negated the argument that praying in a mosque is an essential practice.

In Shayara Bano case, it was held that Triple Talaq is not a part of Quran.

Scope of Freedom of Conscience

It is the State's stand that the question of Essential Religious Practice would not come within the concept of Freedom of Conscience under Article 25 of the Constitution.

Justice Dixit pointed out that in the Constituent Assembly, there was a debate on whether to include "conscience" in Article 25. Dr. Ambedkar had suggested it to be included, saying even people who do not believe in God are also entitled to Article 25 protection.

At this juncture, the Chief Justice opined that conscience and religion are two different aspects.

"Different but mutually existing also," Justice Dixit said.

AG then submitted the apprehensions exhibited by members of the constituent assembly on including religion as a matter of right, as it "may result in some religions placing their hegemony over others…They reached to consensus that we will control vide public order, morality and health."

He that there was a telling statement made by Dr. Ambedkar in the assembly debates to keep the religious instruction outside educational institutions.

Justice Dixit then remarked orally, "Secularism which the makers of our Constitution is not what akin to what American Constitution envisages. Our secularism oscillates between "sarva dharma sama bhava" and "dharma nirapekshatha". It is not a war between the Church and the State…Our Constitution did not enact what Karl Marx has said, that "religion is the opium of the masses""

Practice must be essential to Religion

The AG argued that the protection under Articles 25 & 26 of the Constitution is with respect to religious practice which forms an essential and integral part of the religion. Thus, a practice may be a religious practice but not an essential & integral part of practice. The latter shall not be protected by the Constitution.

He referred to the case of Durgah Committee, Ajmer v. Syed Hussain Ali & Ors. (Ajmer Dargah case), where an Act taking away the rights of sufis from collections in Dargah was under challenge.

He quoted the following excerpt from the judgment:

"…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."

It was further held in this case,

"Even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself…Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Art. 26 may have to be carefully scrutinized."

He then referred to the case Commissioner Of Police & Ors v. Acharya J. Avadhuta, where the question was whether Ananda Margis can perform Tandava dance in public street. It was held therein that essential part of a religion means the "core beliefs" upon which a religion is founded.

"Essential practice means those practices that are fundamental to follow a religious belief…Test to determine whether a part or practice is essential to the religion is to find out whether the nature of religion will be changed without that part or practice…If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part," it was held therein.

It was further emphasized that alterable parts or practices are not the 'core' of religion where the belief is based and religion is founded upon. It could only be treated as mere embellishments to the non- essential part or practices.

In this vein, the AG submitted that there are three test to determine if a practice is essential religious practice : 1. Is this part of core belief? 2. Is this practice fundamental to that religion? 3. If that practice is not followed, will the religion cease to exist?

"Article 25 has different sections. To establish right under Article 25, they should first prove religious practise, then that it is an essential religious practice, then that ERP does not come in conflict with public order, morality or health or any other fundamental right," he added.

Food and dress should not be considered as Essential Religious Practices: AG argues

The AG submitted that in AS Narayana Deekshitulu Etc v. State Of Andhra Pradesh, the Supreme Court has said that food and dress should not be considered as Essential Religious Practices.

"There is nothing which a man can do, whether in the way of wearing clothes or food or drink, which in not considered a religious activity. Every mundane or human activity was not intended to be protected by Constitution under the guise of religion," it was held therein

AG pointed out that the Petitioners side had relied on the Shirur mutt judgement as if dress and food would automatically qualify as Essential Religious Practice. But this has to be understood in the light of the subsequent judgment which says a pragmatic approach should be taken, he said.

He informed the Bench that during the Constituent Assembly debates, KM Munshi had said that we should put a foot down on all practices which will bring down the country and seek to narrow down religious practices. These statements were also quoted by the Supreme Court in Shayara Bano case.

"We want to divorce religion from personal law. We are in a stage where we must unify our nation without interfering with religious practice. Religion must be restricted to spheres which are religious…Religion must be restricted to spheres which legitimately appertain to religion, and the rest of life must be regulated, unified and modified in such a manner that we may evolve, as early as possible, a strong and consolidated nation," Munshi had said.

It was also held in that case that views of religious denomination, though significant are not determinative in essentiality of practice, the AG said. "A practice claimed to be essential must be mandatory and not optional," it was held.

Alleged misuse of Interim Order

Previously, Advocate Mohammad Tahir had alleged that the interim order of the Court restraining students from wearing any sort of religious clothes in classrooms was being widely misused to harass students and even teachers.

Responding to the same, the AG today informed the Court that he has spoken to the Principal Secretary and a meeting will be convened soon.

"I have spoken to Principal Secretary, education department and soon a meeting will be convened of all concerned. I assure court that report will be submitted to the court and to him. I assure all such instances will be taken care of."