Hijab Case Day 8|HC Should Have Avoided Essential Religious Practice Test: SC

Mehta added that it was the petitioners who, in court, raised the argument that hijab was an essential practice.

During the eighth day of hearings in the Hijab case in the Supreme Court, Justice Sudhanshu Dhulia remarked that the Karnataka High Court should not have gone into the question of essential religious practices. 

(Photo Courtesy: The Quint)

During the eighth day of hearings in the Hijab case in the Supreme Court on Tuesday, 20 September, Justice Sudhanshu Dhulia remarked that the Karnataka High Court should not have gone into the question of essential religious practices. 

A bench of Justices Hemant Gupta and Sudhanshu Dhulia was hearing a batch of appeals which challenged the Karnataka High Court judgement which had upheld the hijab ban which prohibited Muslim girls from wearing the hijab in educational institutions. 

Justice Dhulia said that the Karnataka High Court should not have gone into the question of essential religious practice and further said that the HC relied on a term paper by a student in the judgment. 

"High Court should not have gone into it (essential religious practice test). They have relied on a term paper of a student, and they have not gone to the original text. Other side is giving another commentary. Who will decide which commentary is right?" Justice Dhulia noted.

The Karnataka High Court, in its judgement, referred to an essay which was titled, “VEILED WOMEN: HIJAB, RELIGION, AND CULTURAL PRACTICE-2013.” The essay, written by Sara Slininger, held that the hijab is at best only a cultural practice. 

Appearing for the State of Karnataka, Solicitor General of India Tushar Mehta agreed that the High Court could have avoided entering the realm of essential religious practices.  

"For me this is not a matter of religion at all, this is a matter of uniform conduct among all students," the SG said. 

However, Mehta added that it was the petitioners who approached the Court and raised the argument that the hijab was an essential practice.

‘Protection Can Only Be Given to Practices Which Meet Test Threshold’: SG Mehta

The SG also said that there are tests developed by the Court to see if a practice is an essential religious practice or not, and added that protection can be awarded only to such practices which meet the threshold of the test. 

Meanwhile, the bench observed that the petitioners have cited particular verses from the Quran related to the hijab.  

"They have to show it is so compelling. We have figures, who have not been excommunicated for not following. It can be a permissible practice or at best an ideal practice but not an essential practice"

Solicitor General of India Tushar Mehta

The SG further pointed out that women are fighting against hijab in countries like Iran.

The hearing will continue on Wednesday, 21 September.

Govt Order Is 'Religion Neutral': SG Mehta

Mehta also said that the Karnataka government's order about the Hijab is "religion neutral."

"I would be able to show to your lordships as to how this problem arose and how the state, as a custodian of constitutional rights of everyone, tried to tackle the problem by order dated 5 February 2022," Mehta argued, adding that, "It is a religion neutral direction."

He further blamed the Popular Front of India (PFI) for the hijab row controversy.

"In 2022, a movement started on social media by an organisation called the Popular Front of India and the movement, as an FIR which was lodged subsequently suggested, and now culminated into a charge sheet, was designed to create a kind of an agitation based on religious feelings of the people and as a part there were continuous social media messages that start wearing Hijab," Mehta said.

"This is not a spontaneous act of a few individual children that we want to wear a hijab. They were a part of a larger conspiracy and the children were acting as advised," he added.

Background

The Supreme Court began hearing arguments in the batch of petitions challenging the ban on the hijab in educational institutions in Karnataka on Monday, 5 September. On 29 August, the top court had issued a notice in the matter.

In March this year, the Karnataka High Court upheld the state government's ban on Muslim students wearing hijabs in schools and colleges. The ban was packaged as a general rule on following uniforms without wearing religious garb.

The female students had protested the hijab ban, first imposed by individual institutions and then through a government order, and had said that it was a component of their essential religious practice.

They also said that their freedom to dress that way was constitutionally validated as the freedom of conscience and that such bans on their religious attire were hostile discrimination.

(With inputs from Live Law and PTI.)