BENGALURU: The Karnataka government on Monday informed the high court that by praying for an order that the 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 Awasthiadvocate-general Prabhuling K Navadgi claimed that the petitioners want to bind everybody, not just the petitioners, by such a ruling.
Sitting Constituent Assembly debates and Supreme Court judgments to elaborate how the “doctrine of essentiality” has evolved, the state government asserted that the hijab is not an essential practice of Islam. Arguing that the petitioners have placed “zero material” to substantiate their claim that wearing a 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 as it is 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.
Quoting the Supreme Court’s Justice Chandrachud‘s opinion in the Sabarimala judgement, Navadgi said modern jurisprudence says it is a constitutional court that 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 cease to be part of the religion. ,” the AG said, adding that the petitioners’ claim that the 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, the AG referred to the Shiroor Mutt case and three other judgements as also debates in the 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 whether essential religio-us practice includes “religious conscience”. Justice Dixit reminded the AG about debates 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.
However, Chief Justice Awasthi said conscience and religion are different. Justice Dixit, too, pointed out that they are mutually exclusive and added that the secularism that the makers of the Constitution was conceived not akin to the secularism of the American Constitution. “It is not that we have a wall between church and government,” Justice Dixit said.
Continuing his arguments on behalf of the state government before a full bench headed by Chief Justice Ritu Raj Awasthiadvocate-general Prabhuling K Navadgi claimed that the petitioners want to bind everybody, not just the petitioners, by such a ruling.
Sitting Constituent Assembly debates and Supreme Court judgments to elaborate how the “doctrine of essentiality” has evolved, the state government asserted that the hijab is not an essential practice of Islam. Arguing that the petitioners have placed “zero material” to substantiate their claim that wearing a 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 as it is 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.
Quoting the Supreme Court’s Justice Chandrachud‘s opinion in the Sabarimala judgement, Navadgi said modern jurisprudence says it is a constitutional court that 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 cease to be part of the religion. ,” the AG said, adding that the petitioners’ claim that the 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, the AG referred to the Shiroor Mutt case and three other judgements as also debates in the 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 whether essential religio-us practice includes “religious conscience”. Justice Dixit reminded the AG about debates 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.
However, Chief Justice Awasthi said conscience and religion are different. Justice Dixit, too, pointed out that they are mutually exclusive and added that the secularism that the makers of the Constitution was conceived not akin to the secularism of the American Constitution. “It is not that we have a wall between church and government,” Justice Dixit said.
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