by BENGALURU: The state government on Monday informed the Karnataka high court that by praying for an order that hijab is essential to Islam, the petitioners who have challenged its order on uniforms in government PU colleges are seeking to get a declaration that it would be binding on every Muslim woman.
Continuing his arguments on behalf of the state government before a full bench headed by Chief Justice Ritu Raj Awasthi, advocate-general Prabhuling K Navadgi claimed that the petitioners want to bind everybody, not just the petitioners, by such a ruling. Before coming to a constitutional court like the high court and seeking for such a declaration, the petitioners should have exercised circumspection and discretion, he added.
Citing Constituent Assembly debates and Supreme Court judgments to elaborate how the “doctrine of essentiality” has evolved, the state government asserted that hijab is not an essential practice of Islam .
Arguing that the petitioners have placed “zero material” to substantiate their claim that wearing hijab is an essential religious practice, the state government requested the court to decide the issue one way or the other.
“The GO (government order) is innocuous and is consciously innocuous. The controversy would not have arisen had the petitioners requested permission for the headscarf as a dress. They say, ‘Permit us it as a religious symbol’,” he said.
The question is whether it is part of a religious practice and once this controversy is settled, the right of the student to enter their institution will also get settled, he added.
According to him, there are eight petitions before the court. The averments and ground taken are that as wearing headscarf is a cultural and religious practice, they choose to follow Islam, they believe it is an essential religious practice.
“The petitioners have not placed no material whatsoever to substantiate their claim for declaration for wearing of hijab as a fundamental right, essential religious practice under Article 25. This constitutional court has been called upon to declare this as an essential religious practice,” he further claimed.
Quoting Supreme Court judge Justice Chandrachud’s opinion in the Sabarimala judgement, Navadgi said modern jurisprudence says it is the constitutional court which has to ultimately decide such issues.
“Every activity of religion cannot be considered an essential practice. The last test is the binding nature of the religion. If it is optional, it cannot be binding. It must be compelling that if you disobey you ceased to be part of the religion,” the AG said, adding the petitioners’ claim that hijab is essential to religion should be tested on these principles.
Quoting a Supreme Court judgment, Navadgi argued that food and dress cannot be essential practices of religion. Dwelling on the issue of essential religious practice during his 130-minute submission, the AG referred to the Shiroor Mutt case and three other judgements as also the debates in Constituent Assembly involving KM Munshi and Dr BR Ambedkar.
This was prompted by queries from Justices Krishna S Dixit and JM Khazi vis-a-vis conscience and religion. Justice Khazi asked as to whether essential religious practice includes ‘religious conscience’. On the other hand, Justice Dixit reminded the AG about debate on conscience in the Constituent Assembly.
The AG replied that it is a case of belief or non-belief and the assembly debate was how to interpret the freedom of conscience. According to him, essential religious practices may not come under the freedom of conscience.
He pointed out that Munshi and others expressed apprehension that if India is to adopt itself as a secular state, why should believing in religion be right. That may result in some religion placing their hegemony over the other. Then these restrictions such as subject to morality, public order and health came about, AG added
However, Chief Justice Awasthi said conscience and religion are different.
Justice Dixit pointed out that they are mutually exclusive as well and added that secularism, which the makers of the Constitution conceived, is not akin to secularism of the American Constitution. “Ours is ‘sarva dharma samabhava’ on the one end and ‘dharma nirapekshata’ on the other. It is not we have a wall between the church and the government,” Justice Dixit said.
Continuing his arguments on behalf of the state government before a full bench headed by Chief Justice Ritu Raj Awasthi, advocate-general Prabhuling K Navadgi claimed that the petitioners want to bind everybody, not just the petitioners, by such a ruling. Before coming to a constitutional court like the high court and seeking for such a declaration, the petitioners should have exercised circumspection and discretion, he added.
Citing Constituent Assembly debates and Supreme Court judgments to elaborate how the “doctrine of essentiality” has evolved, the state government asserted that hijab is not an essential practice of Islam .
Arguing that the petitioners have placed “zero material” to substantiate their claim that wearing hijab is an essential religious practice, the state government requested the court to decide the issue one way or the other.
“The GO (government order) is innocuous and is consciously innocuous. The controversy would not have arisen had the petitioners requested permission for the headscarf as a dress. They say, ‘Permit us it as a religious symbol’,” he said.
The question is whether it is part of a religious practice and once this controversy is settled, the right of the student to enter their institution will also get settled, he added.
According to him, there are eight petitions before the court. The averments and ground taken are that as wearing headscarf is a cultural and religious practice, they choose to follow Islam, they believe it is an essential religious practice.
“The petitioners have not placed no material whatsoever to substantiate their claim for declaration for wearing of hijab as a fundamental right, essential religious practice under Article 25. This constitutional court has been called upon to declare this as an essential religious practice,” he further claimed.
Quoting Supreme Court judge Justice Chandrachud’s opinion in the Sabarimala judgement, Navadgi said modern jurisprudence says it is the constitutional court which has to ultimately decide such issues.
“Every activity of religion cannot be considered an essential practice. The last test is the binding nature of the religion. If it is optional, it cannot be binding. It must be compelling that if you disobey you ceased to be part of the religion,” the AG said, adding the petitioners’ claim that hijab is essential to religion should be tested on these principles.
Quoting a Supreme Court judgment, Navadgi argued that food and dress cannot be essential practices of religion. Dwelling on the issue of essential religious practice during his 130-minute submission, the AG referred to the Shiroor Mutt case and three other judgements as also the debates in Constituent Assembly involving KM Munshi and Dr BR Ambedkar.
This was prompted by queries from Justices Krishna S Dixit and JM Khazi vis-a-vis conscience and religion. Justice Khazi asked as to whether essential religious practice includes ‘religious conscience’. On the other hand, Justice Dixit reminded the AG about debate on conscience in the Constituent Assembly.
The AG replied that it is a case of belief or non-belief and the assembly debate was how to interpret the freedom of conscience. According to him, essential religious practices may not come under the freedom of conscience.
He pointed out that Munshi and others expressed apprehension that if India is to adopt itself as a secular state, why should believing in religion be right. That may result in some religion placing their hegemony over the other. Then these restrictions such as subject to morality, public order and health came about, AG added
However, Chief Justice Awasthi said conscience and religion are different.
Justice Dixit pointed out that they are mutually exclusive as well and added that secularism, which the makers of the Constitution conceived, is not akin to secularism of the American Constitution. “Ours is ‘sarva dharma samabhava’ on the one end and ‘dharma nirapekshata’ on the other. It is not we have a wall between the church and the government,” Justice Dixit said.
