Petitioners seeking declaration to make hijab binding on all who follow Islam: Karnataka govt to HC
The Karnataka government on Monday told the High Court that the petitioners in the Hijab case were not only seeking permission to wear the headscarf but also wanted a declaration that it becomes part of a religious sanction to bind on everyone who followed Islam.
Hijab not an essential religious practice and should be kept outside educational institutions, reiterates Karnataka govt in High Court
High Court adjourns hearing till 2:30 pm tomorrow
"In a case like this, where you want to bind every Muslim women, and which can gives rise to religious sentiments and division, you should have shown more circumspection to lay a foundation," says AG
The petitioners have sought a declaration that every woman who follows Islam religion is required to wear the hijab, they want a declaration which can bind every Muslim women: AG
AG presents five principles for the case
AGsays, From a reading of these cases, I would carve out five principles for the present case:
1.The practise must be fundamental to the religion.
2 If the practise is not followed, it will change the religion itself.
3. Practice must precede the birth of religion.
4. Foundation of religion must be based on that. It must be co-existent with the religion.
5.Binding nature. If it is optional, then it is not essential. If wearing of it is not obligatory, then it is not essential.
AG quotes from Triple Talaq case : A practice claimed to be essential must be mandatory and not optional
AG reads the conclusions in Triple Talaq case
AG reads the conclusions in Triple Talaq case:
1. Views of religious denomination, though significant are not determinative in essentiality of practice.
2. Courts have central role.
AG says that judgment in Kureshi case regarding cattle sacrifice is also relevant in the case.
If it is shown that wearing Hijab is essential to religious pracitce, they pass SC's tests
The shift in judicial approach took place when ‘essentially religious’ (as distinct from the secular) became conflated with ‘essential to religion': AG
AG reads from Sabrimala judgement, and hails it 'critical' for entire discourse
"While the Court would take into consideration the views of a religious community in determining whether a practice qualified as essential, this would not be determinative," AG quotesSabarimala judgment :
AG quote Justice Chandrachud during Sabrimala on Article 25
"What constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself" - this sentence in previous judgment, see how Justice Chandrachud explains and distinguishes: AG
Article 25 has different sections. To establish right under Article 25, they should first prove religious practise, then that it is an essential religious practice, then that ERP does not come in conflict with public order, morality or health or any other: AG
We want to divorce religion from personal law. We are in a stage where we must unify our nation without interfering with religious practice. Religion must be restricted to spheres which are religious: AG quotes Munshi
"Religion must be restricted to spheres which legitimately appertain to religion, and the rest of life must be regulated, unified and modified in such a manner that we may evolve, as early as possible, a strong and consolidated nation," addsAG quoting Munshi
The entire law on essential religious practice was consolidated in the Sabarimala judgment. Before that, the need for bifurcating this was first spoken by K M munshin in constitutent assembly debates. This has beeen quoted in the Shayra Bano case: AG
The entire law on essential religious practice was consolidated in the Sabarimala judgment. Before that, the need for bifurcating this was first spoken by K M munshin in constitutent assembly debates. This has beeen quoted in the Shayra Bano case, says AG
The Shirur mutt judgement was read as if dress and food would automatically qualify as Essential Religious Practice. But this has to be understood in the light of the subsequent judgment which says a pragmatic approach should be taken: AG
AG lists three tests to check if a practice is 'essential religious practice'
According to AG, there are three tests to check if a practice is 'essential religious practice'
"Is this part of core belief? Is this practice fundamental to that religion?. If that practice is not followed, will the religion cease to exist," AG said, according to Live Law.
Claims of Article 26 for practices not essential to religion must be carefully scrutinised: AG quotes Dargah committee judgement
AG quotes from Dargah committee judgment: "Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Art. 26 may have to be carefully scrutinised"
Article 25 protects essential religious practices, not religion: AG
AG quotes B R Ambedkar, argues that religion must be kept out of educational institutions
Essential religious practice does not come under freedom of conscience, AG tells bench
Restriction on hijab needed to maintain internal discipline, argues AG
High Court hearing enters 7th day, to begin at 2:30 pm
Citizens hold placards and candles in support of the hijab wearing students, in Bengaluru, Saturday, Feb. 19, 2022.
Prohibitory orders in Bengaluru till March 8
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