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Discriminatory to not essential religious practice — what appellants, state told SC in hijab case

With Supreme Court set to deliver its verdict on the constitutional validity of the hijab ban in Karnataka educational institutions Thursday, a look back at arguments made in the case.

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New Delhi: The Supreme Court Thursday will deliver its much-awaited judgment on the constitutional validity of a Karnataka government order resulting in the imposition of restrictions on the wearing of hijab by Muslim girls studying in pre-university colleges in the state.

The Court will also decide whether wearing of the headscarf is a part of the essential religious practice in Islam.

The Division Bench of Justices Hemant Gupta and Sudhanshu Dhulia was set up in August to hear a batch of 23 petitions challenging the order of the Karnataka High Court, which in March this year had upheld the restrictions.

The hearings in Supreme Court began on 29 August, and the judgment was reserved by the top Court on 22 September.

Questions raised before the court included whether the wearing of the Hijab constitutes an affront to the right to equality and privacy.

The demand for the right to wear hijab by Muslim students and counter-protests against it by Hindu organisations, had taken a violent turn in Karnataka in February, forcing district administrations of various districts to bring in prohibitory orders and close down schools and colleges.

The Karnataka High Court verdict upholding the ban on religious clothing in classrooms had disappointed many, prompting appeals in the Supreme Court.

ThePrint takes a look back at the arguments made in the case before the top court.

Also Read: SC ruling on hijab & Gyanvapi won’t just be limited to faith. It’ll be about our democracy

Intersectional discrimination

According to the petitioners the ban was discriminatory, as it specifically targeted Muslim girl students.

They contended that the ban amounts to “intersectional discrimination” as it discriminates against women based both on gender and religion, and as such violates Article 15 (1) of the Constitution.

Article 15 (1) prohibits discrimination on grounds of religion, race, caste, sex, place of birth or any of them.

The right to dress as one pleases, as an element of privacy, extends even to schools. The ban forces Muslim woman to “barter” their right to religion for education, the petitioners had said.

Advocate General for Karnataka, P. Navadgi, argued, however, that the disputed ban was not on hijab, but a rule to promote unity and equality in colleges, through a uniform dress code among students.

Senior advocate V. Venkatramani, appearing for a teacher from Udupi, stated that the hijab acts as a ‘wall of separation’ for teachers and hampers communication due to religious interference.

‘Reasonable accommodation’ and ‘heckler’s veto’

The question of “reasonable accommodation” for religious practices was also raised.

Reasonable accommodation means an adjustment made to allow a person to exercise rights fully and effectively. The petitioners cited decisions from constitutional courts from across the world and said such reasonable accommodation was needed to secure the “dignity” of the students.

The hijab should be allowed as a reasonable accommodation “as it does not affect public order, health or morality”, said senior advocate Devadutt Kamat.

He added that the ban cannot be imposed on the basis of a “heckler’s veto” — a restriction on free speech because of an anticipated hostile reaction from opponents.

Kamat claimed that “by the Karnataka government’s own admission” the ban was imposed due to “indiscipline” caused when students wearing saffron scarves shouted slogans against students wearing hijab.

Also Read: India’s hijab supporters will lose even if they win SC battle. Because the real war is political

Essential religious practices test

The Karnataka HC verdict had held the ban on hijab as constitutional because it did not constitute an essential religious practice of Islam.

The essential religious practices (ERP) test has no precise definition, but has been described by the SC as “core beliefs upon which a religion is founded” and the doing away of which will change the “nature of the religion”.

If a practice interferes with public order, health or morality, it is not protected under Article 25 of the Constitution, which accords the freedom of conscience and free profession, practice and propagation of religion.

In this case, the petitioners had argued that because hijab constituted an “essential religious practice” of Islam, the restriction cannot be imposed in light of Article 25.

It was further argued whether the hijab’s status as an essential practice was determinative of its constitutionality. Appearing for the petitioners, senior advocate Rajeev Dhavan said that it was a bonafide practice and therefore must be permissible.

On behalf of the state, Solicitor General of India, Tushar Mehta argued that the petitioners could not prove the practice was “essential” and a mere prescription by the Quran will not make the practice so.

“The community must prove that the commandment is followed universally and without interruption,” he said.

It was also argued that not all religious practices are protected under Article 25.

Questions have been raised in numerous cases as to whether a court has the competence to determine whether a practice qualifies as an essential religious practice.

This is presently pending a decision by the Court in the review of the 2018 Sabarimala verdict, where the Court had declared the practice of exclusion of menstruating women as unconstitutional.

(Edited by Theres Sudeep)

Also Read: The many shades of grey in Iran’s hijab war show it’s not just personal freedom vs theocracy


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