Hijab, Essential To Islam? Don't Need To Answer This Question When Individual Rights Under Arts 19 And 25 Asserted, Says Justice Dhulia

Justice Sudhanshu Dhulia, while proposing to overturn the controversial ban on the hijab in government colleges in Karnataka, held that the doctrine of essential religious practice did not have to be invoked at all to put the matter to rest. Justice Dhulia explained on Thursday while giving a conspectus of his dissenting opinion – "The main thrust of my judgement is that this entire concept of essential religious practices, in my opinion, was not essential for the disposal of this dispute. The High Court took the wrong path there…This was simply a question of Article 19(1)(a), its applicability, and Article 25(1) primarily. And it's ultimately a matter of choice. Nothing more, nothing less." While Justice Hemant Gupta moved to dismiss the appeals and uphold the legality of the impugned Government Order that had earlier received the imprimatur of the Karnataka High Court, his colleague on the Division Bench hearing the challenge expressed a different opinion. Justice Dhulia, basing his decision on the primacy of choice, allowed the appeals and quashed the contentious order. In his judgement, he noted that the order did not "pass muster the provisions of Article 19 and Article 25". Notably, Justice Dhulia held that the High Court had erred by examining the essentiality of wearing the hijab. The first question that the Karnataka High Court had formulated was whether wearing the hijab was "a part of essential religious practice in Islamic faith" and as such, protected under Article 25 of the Constitution. Justice Dhulia observed that the High Court had placed a heavy burden on the petitioners by making the question of essential religious practice central to the decision – "Everything depended on the determination on this question. But then the Court had set a very tall order for the Petitioners to prove their case." Justice Dhulia enumerated the ingredients of essential religious practice – "The Petitioners had to prove that wearing of hijab forms a core belief in the religion of Islam. ERP also meant that such a practice should be fundamental to follow as a religious belief or practice as ERP was held to be the foundation, on which the superstructure of the religion was erected. Essential Religious Practice would mean a practice without which religion would not remain the same religion. Also, the Petitioners had to prove that the practice of wearing hijab is a practice which is being followed since the very beginning of their religion. This was the task set up for the Petitioners to prove their case. But this was not enough, this was only the threshold requirement. The Petitioners also had to prove that the ERP does not militate against any of the Constitutional values." The examination of the custom of wearing the hijab in the context of the doctrine of essential religious practice, Justice Dhulia opined, was wholly redundant. Instead of "straightaway taking the ERP route as a threshold requirement", the High Court should have first examined whether the restriction imposed on wearing the garment was valid, or whether it was hit by the doctrine of proportionality, Justice Dhulia observed. He explained that Article 25(1) would insure not only essential religious practices but any religious practice against encroachment, so long as it did not violate "public order, morality and health" and was subject to the other provisions in Part III – "When protection is sought under Article 25(1) of the Constitution of India, as is being done in the present case, it is not required for an individual to establish that what he or she asserts is an ERP. It may simply be any religious practice, a matter of faith or conscience!" Further, he acknowledged that the present case was different because the question was "not merely of religious practice or identity", but also of freedom of expression enshrined in Article 19(1)(a). This is what "made the case different", Justice Dhulia pointed out. He drew a stark contrast between the present issue and landmark cases in which the apex court had tried to answer whether certain practices could be termed essential religious practices (such as the Shirur Mutt case) – "This Court was dealing with questions related to both Article 25 as well as Article 26. These were the cases which were either concerned with the management of an activity related to a religious shrine or institution or where the State had met some kind of resistance or challenge by the citizens, who claimed rights both under Articles 25 and 26. These were also the cases where a community, sect or a religious denomination of a religion was against the State action. This, however, is not presently the case before this Court. We have before us a case of assertion of individual Right as different from what would be a community Right." Justice Dhulia compared individual rights conferred by Article 25(1) with the ...

Hijab, Essential To Islam? Don't Need To Answer This Question When Individual Rights Under Arts 19 And 25 Asserted, Says Justice Dhulia

Awstika Das

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