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

"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 community-based rights emanating from Articles 25(2) and 26. Justice Dhulia also distinguished the Triple Talaq and the Sabarimala judgements, where the essential determination before the Court was "of religion and religious practice". He noted that freedom of expression was not a central issue in the two cases, and was addressed peripherally, if at all. Justice Dhulia defined the scope of the present analysis –

"We are concerned only with Article 25(1) and not with Article 25(2) or Article 26. Whereas Clause 1 of Article 25 deals with individual rights, Article 25(2) and Article 26, deal by and large with community-based rights…Additionally, we must deal with the Fundamental Rights given to an individual under Article 19(1)(a) and its interplay with Article 25(1). In that sense what has been decided by this Court earlier as ERP would not be of much help to us. For this reason, the entire exercise done by the Karnataka High Court, in evaluating the rights of the Petitioners only on the touchstone of ERP, was incorrect"

The dissenting opinion also contained an emotive appeal to sensibilities –

"We have before us two children, two girl students, asserting their identity by wearing hijab, and claim protection under Article 19 and Article 25 of the Constitution of India. Whether wearing hijab is an ERP in Islam or not is not essential for the determination of this dispute. If the belief is sincere, and it harms no one else, there can be no justifiable reasons for banning hijab in a classroom."

Further, Justice Dhulia observed that courts were not "the forums to solve theological questions" because they were ill-equipped to discharge such an obligation, but more importantly, because there could be a diversity of views with respect to a religious issue. Choosing one viewpoint over others "may not be correct", Justice Dhulia conceded. Therefore, courts should steer clear of interpreting religious scriptures.

Justice Dhulia also deferred to the wisdom of the nine-Judge Bench set to determine the correctness of the Sabarimala judgement. He said –

"In any case as to what constitutes an Essential Religious Practice, in all its complexities, is a matter which is pending consideration before a Nine Judge Constitutional bench of this Court19 and therefore in any case it may not be proper for me to go any further into this aspect."

The matter has been placed before the Chief Justice of India since the Division Bench delivered a split verdict. Till this dispute is resolved by a larger bench, or any interim direction is issued, the High Court's decision will prevail and the Government Order under challenge will continue to operate.

Case Title

Aishat Shifa v. State of Karnataka & Ors. [CA No. 7095/2022] and other connected matters