Claims about the wearing of hijabs must pass the constitutional morality and individual dignity test: A-G to HC

*Paromita Das

On Friday, Advocate-General Prabhuling K. Navadgi told the High Court of Karnataka that claims on wearing hijab would also have to “pass the test of constitutional morality and individual dignity as interpreted by the Supreme Court in the Sabarimala case,” claiming that wearing a hijab was not part of “essential religious practise” protected under the right to freedom of religion.

While the Constitution does not distinguish between “essential” and “non-essential” religious practices, courts have developed this standard in cases involving religious disputes since the 1950s. They have argued that the constitutional protection of religious freedom only applies to behaviors that are important to that religion, traditions that would change the nature of the faith if they were not present.

Article 25(1) of the Indian Constitution protects religious freedom and the right to practise one’s religion. Article 26(b) also grants religious denominations the right to regulate their “own religious affairs.”

Over the years, courts have ruled that only acts integral to a religion are protected by these prohibitions. As a result, courts are frequently called upon to determine whether something is an essential religious activity or not.

While there is no exact definition of what constitutes fundamental religious exercise, courts have established several guidelines. The Supreme Court has ruled that the “fundamental ideas upon which a religion is formed” are the “essential portion of a religion.” The test for important religious activity is whether the “nature of the religion will be affected if that” practice is not practiced.

According to the Supreme Court, removing a practice results in a “fundamental alteration in the character of that religion,” hence it is an essential practice.

The Supreme Court has also stated that what constitutes as vital must be determined “according to its tenets, historical context, and change in evolutionary process, etc.”

 

Initially, courts incorporated important religious activities in order to discern between what is secular and what is religious. This distinction was critical since Article 25(2)(a) empowers the government to make legislation to regulate or restrict “any commercial, financial, political, or other secular activities which may be associated with religious practise.”

Mr. Navadgi began his arguments on petitions filed by Muslim girls students challenging restrictions on wearing hijabs in classrooms before a three-judge Bench led by Chief Justice Ritu Raj Awasthi, justifying the February 5, 2022; Government Order, which laid out guidelines on uniforms in schools and pre-university colleges.

As a result of this emphasis, parties on issues concerning religious freedom frequently argue about whether a practice is vital to a religion or not.

Members of the Legislative Assembly were appointed as chairpersons of the college development committees (CDCs) of the government per-university colleges in their respective Assembly constituencies, according to a Government Order issued in 2014, the A-G stated in response to the petition’s allegation

that Udupi MLA Raghupaghi Bhat was a “self-claimed chairperson” of the Government PU College for Girls, Udupi.

He also pointed out to the Bench, which included Justice Krishna S. Dixit and Justice Jaibunnisa M. Khazi, which the GO of February 25 had only given CDCs autonomy to prescribe uniforms while claiming that it was a “conscious decision” taken by the Government as the issue of wearing hijab escalated despite it, the Government referring the issue of uniform to a high-level committee. According to the A-G, the government has not mandated a uniform for pre-university colleges.

When asked by the Bench why the Government needed to refer to various judgments of other High Courts and the Supreme Court related to Article 25 (right to freedom of religion) when it merely wanted to leave the decision.

According to the CDC, the A-G said that it could have been avoided. But “ultimately

We have left it to the CDCs.”

Justifying uniforms and reiterating the State’s belief in treating everyone equally, the A-G also stated that the Karnataka Education Act, 1983, among other things, aimed at “fostering the harmonious development of students’ mental and physical faculties and cultivating a scientific and secular outlook through education.”

“Let the people hear what the respondents, State Government and others have to say,” the High Court of Karnataka declared on Friday, refusing to accept a request to halt live streaming of hearings on petitions about hijab regulations on the court’s official YouTube channel.

Earlier, senior counsel Ravivarma Kumar, who was representing four Muslim ladies students from Udupi, asked the court to halt the live streaming of the proceedings.

“Because the proceedings are being aired out of context, live streaming is causing a lot of problems all around the state and a lot of unrest.” “Live streaming has become counterproductive, and children across the state are subjected to unspeakable agony and sorrow;” Mr. Kumar alleged.

However, the Advocate-General stated that the petitioner’s attorneys had already argued fiercely, and… at this point, the Chief Justice stated that “let the people also hear what the respondents’ viewpoint is.”