New Delhi: The Karnataka government Monday insisted that it was crucial for the Karnataka High Court to give a definite view on the question of whether hijab is an essential practice in Islamic law, so that educational institutions are aware of the kind of restrictions that can be imposed on students when prescribing a dress code.
Advocate General (AG) Prabhuling Navadgi made this submission when a three-judge bench of the Karnataka HC, led by Chief Justice Ritu Raj Awasthi, wondered if there was a need to go into the constitutional questions arising from the set of petitions challenging the hijab ban for girl students studying in pre-university colleges.
Saying the state had given complete autonomy to institutions to decide on uniform, Navadgi argued that the “element of introducing religious dress should not be there in uniform”.
Further, Navadgi culled out the five principles expounded by the Supreme Court to determine an ‘essential religious practice’. According to the state’s interpretation of these principles, he added, wearing the hijab is not a practice that is essential to Islam.
He said a practice claimed to be essential “must be mandatory and not optional”.
“This is a case where petitioners have come to the court and sought a declaration. They want that a particular dress to be declared as part of religious sanction so as to bind every woman who follows Islamic faith. Every woman is required to wear the hijab as per the religious sanction, is the claim made,” Navadgi contended.
The state’s government order of 5 February, virtually supporting the ban imposed by some colleges, is also under judicial scrutiny.
The state law officer will continue with his submission Tuesday.
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‘Element of introducing religious dress shouldn’t be in uniform’
On Monday, when the court resumed hearing the case, it asked Navadgi about the government’s stand on the hijab ban.
“It is argued that they (petitioners) may be permitted to wear the same colour headdress as permitted in uniforms prescribed by the college. We want to know the stand of the state. It was argued that if someone is wearing a dupatta, would that be allowed as part of uniform?” the bench, also comprising justices J.M. Khazi and Krishna M. Dixit, asked.
To this, the AG Navadgi argued that the state had left it to the institution to decide on the dress code.
But when the bench pondered if it was required to go into the constitutional question of hijab being an essential Islamic practice, considering the state had no stand on the subject, the AG quickly made a clarification. “Whether students be allowed to wear dress or apparel which could be symbol of religion, the stand of the state is that element of introducing religious dress should not be there in uniform,” he said.
He then opposed the petitioners’ suggestion that wearing the hijab is an essential practice under the Islamic law and asked the court to determine the issue.
According to him, institutional discipline entitled the colleges to enforce restrictions. Therefore, an answer to the question whether hijab-wearing is a constitutionally-protected essential religious right will enable the institutions to determine the nature of restrictions to be imposed on students.
Arguments on ‘essential religious practice’
Further, the AG cited several SC judgments to claim an essential practice of religion is one that is fundamental to follow a religious belief, one on which the “super structure of a religion is built”, without which a religion is no religion.
“Not every aspect of religion is safeguarded under the Constitution. It is not that every such activity can be declared as an essential religious practice,” Navadgi said, drawing the distinction between two phrases — ‘essentially religious’ and an ‘essential practice to religion’.
In the context of hijab wearing, the AG contested the petitioners’ view that food and dress should be considered as part of the essential religious practice.
The AG read out portions from the landmark judgment in the Sabarimala case — which struck down the age-old ban on the entry of menstruating women in the Sabarimala temple — that he said brings to the fore “nuances of the doctrine of essential religious practice”.
“A practice claimed to be essential must be mandatory and not optional,” the AG said.
Apart from being fundamental to the religion, the practice must precede the birth of the religion or must be co-extensive with religion, he said.
“If that is not observed, discontinued or not followed, then it should result in the end of that religion itself. Every activity cannot be characterised as part of the religion and the practice must be of binding nature,” he argued.
“It must be compelling and not optional. If you disobey, then you should cease to be part of that religion,” the AG added, explaining the principles of an essential religious practice.
The petitioners, he contended, had shown zero materials to pass the test of essential religious practice, except for quoting the Quran.
The AG read out cases where the SC had refused to accept references to the Quran, while determining if a particular practice was essential or not to Islamic law.
(Edited by Saikat Niyogi)
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