Hijab Case - Karnataka High Court Should Not Have Gone Into Essential Religious Practice Test : Justice Sudhanshu Dhulia [Day 8]
"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. The other side is giving another commentary. Who will decide which commentary is right?",Justice Dhulia
On the eight day of the hearing in the Hijab case, Supreme Court judge Justice Sudhanshu Dhulia orally remarked that the Karnataka High Court should not have gone into the question of essential religious practice.Justice Dhulia also commented that the High Court relied on a term paper of a student in the judgment."High Court should not have gone into it(essential religious practice test)....
On the eight day of the hearing in the Hijab case, Supreme Court judge Justice Sudhanshu Dhulia orally remarked that the Karnataka High Court should not have gone into the question of essential religious practice.
Justice Dhulia also commented that the High Court relied on a term paper of 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 said.
The High Court judgment had referred to an essay titled "VEILED WOMEN: HIJAB, RELIGION, AND CULTURAL PRACTICE-2013", written by Sara Slininger to hold that hijab is at best a cultural practice.
Solicitor General of India Tushar Mehta, appearing for the State of Karnataka, candidly agreed that the High Court could have avoided going into the essential religious practice issue. However, the SG added that it was the petitioners who approached the Court raising the argument that hijab was an essential practice.
A bench comprising Justices Hemant Gupta and Sudhanshu Dhulia was hearing a batch of appeals challenging the Karnataka High Court judgment which upheld the ban on wearing hijab by Muslim girls in educational instituions.
Mere mention in Quran will not make the practice essential : SG
SG Tushar Mehta submitted that there are tests developed by the Courts to ascertain if a practice is essential religious practice or not and protection can be afforded only to such practices which meet the threshold. Some of the tests are that the practice must have started from time immemorial, must be co-existent with the religion, must be so essential that without which the religion's nature will be altered and must be a compelling practice.
The bench pointed out that the petitioners have cited certain verses from Quran regarding hijab. The SG replied that mere mention in the Quran will not make the practice essential.
"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", SG said. The SG also mentioned that in countries like Iran, women are fighting against hijab.
"They have said it is written in Quran and whatever written in Quran is farz..,and it is not for us to decide..." Justice Dhulia remarked.
Justice Dhulia added that the Karnataka High Court should not have gone into question of ERP. "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?"
SG said that such occasion will arise if somebody goes to Court raising essential practice. But the Court will decide based on Constitution.
"But that has not been done in the case, you agreed to that candidly," Justice Dhulia said.
"For me this is not a matter of religion at all, this is a matter of uniform conduct among all students," SG responded.
The hearing in the case will continue tomorrow.
Background
A batch of 23 petitions were listed before the bench. Some of them are writ petitions filed directly before the Supreme Court seeking the right to wear hijab for Muslim girl students. Some others are special leave petitions which challenge the judgment of the Karnataka High Court dated March 15 which upheld the Government Order dated 05.02.2022, which effectively prohibited Petitioners, and other such female Muslim students from wearing the headscarf in their Pre-University Colleges.
A Full Bench of the High Court comprising Chief Justice Ritu Raj Awasthi, Justice Krishna Dixit and Justice JM Khazi had held that wearing of hijab by women was not an essential religious practice of Islam. The Bench further held the prescription of uniform dress code in educational institutions was not violative of the fundamental rights of the petitioners.
Case Title: Aishat Shifa versus State of Karnataka SLP(c) 5236/2022 and connected cases.
Reports of previous hearings: