Karnataka ASG Shanti Bhushan has submitted before the Karnataka High Court that it was very difficult for the state to consider what part of attire was religious and what was not.
The ASG was making submissions before the three-Judge Bench comprising Chief Justice Ritu Raj Awasthi, Justice J.M. Khazi and Justice Krishna S. Dixit.
The High Court was hearing a bunch of petitions filed by Muslim petitioners against the state government order that banned wearing of Hijab ineducational istitutions.
The ASG said,
“My suggestion is to leave at the discretion of the institution.”
ASG of Karnataka said, “On the previous occasion, I made submissions with reference to the government order dated February 5, 2022. The second issue was question to whether a practice of hijab can be elevated to the status of fundamental right under Article 25 of the Constitution.
Court – Have you finished on gov order?
Court- We have one clarification, you have argued on GO that it is totally innocuous. You have not issued any direction restricting the wearing of hijab. This is what probably your stand. The state government have not put any restriction and the GO does not say anything about wearing hijab, it only says that uniform prescribed in the school shall be worn. This is your stand?
Court- now come to your statement of objection. Para 19
Court- what is your stand whether the hijab can be permitted in the institution or not?
Asg- in the gov order which is impugned here the operative portion is the discretion of …
Court- suppose the institution permit can you not have objection?
Asg- if the institution permit hijab or prohibit, we would possibly take decision when the situation arise
Court- you have to make your stand very clear
Asg- we are explaining that now the petitioners have come before the lordship ..
Court- it has been argued by the petitioner that maybe it may permit to wear the same colour which is prescribed in uniform as headband in the institution, therefore we want to know the stand of the state govt that whether that can be treated as part of the uniform or not. Second, it was also argued by Sanjay Hegde that suppose they are wearing dupatta, which is part of the uniform and that they wear it over the head also then whether that can be permitted or not?
Asg – these are all sub-issues that are made but broadly it was the GO. On various grounds, it was said that the order was irrational, it intended to prevent the members of the community from wearing their religious marks the ans to that i have submitted that gov order dated 5th feb 2022 refers as it is as far as the operative portion is concerned.
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Now the views to whether students should be permitted to wear dress, but the ans would back to one we have not prescribed but as matter of principle whether a student must be allowed to wear dress which symbolic of religious status, for instance the preamble of Karnataka education itself says we proposed a foster a secular outlook also. Therefore, my submissions is element of introducing religious dress should not be there in uniform.
Court- but if you wearing a part uniform over your apparel is it any manner would be religious issue?
Asg- it is very difficult for state to consider what part is religious and what part is not
Asg- my suggestion is to leave at the discretion of the institution
Court- so the state govt is not interfering, the institution have to decide whether they have to permit hijab or not. This is your stand?
Court- whether we are require to go into all these constitutional questions. Whether it violates the art 25 or not. Whether it is essential religious practice or not.
Whether our view is necessary ir not?
Asg- acc to me it is necessary. Let us the institution is before the court and they are preventing wearing hijab…
Court – can we restrict the institution? State govt can do that, they can issue directions. The institution are pvt body. You say now they havr to decide.
They are not the statutory bodies, they are create under your circular . Now since they are not the statutorybody can they be regulated by the court order?
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Argue on this
Asg- would you prevent the perosn from entering institution wearing hijab? The ans would be to maintain institutional discipline i am entitled to enforce that discipline by making certain restrictions, the petitioner would then contend that you cannot hold such thing because i hold a fundamental right under art 25. Any institutional bylaws cannot be imposed on us because of art 25 therfore this wuestion whether the hijab falls under the fundamental right art 25 requires to be decided by the court.
Asg-entire controversy revolves around this question as to whether it is part or art 25 or not?
The immediate answrr of any institution would be to maintain discipline we have restricted.
In this case, the institution has taken stand yes we will not permit hijab.
Asg- the issue, my lords have to go into it.
05.02.2022, we do not decide reason is from shirur mutt case, the law seems to have evolved as to what forms the religious doctrine of any particular religous must be decided in the zone of that regionitsrlf and the state is unless it is a secular should not intervene
Asg – sabrimala case where justice chandrachud says the court in the modern constitution jurisprudence assumes a central role in this matter. It is the constitutional court has to decide ultimately as to whther the religous practice sought be in art 25 will be enforced at all or not.
Asg- govt order is innocuous and consciously is.
Some of the institutions permit it, some do not but the controversy would be avoided if the petitioner would have simply come and said this institution is not permitting hijab. They did not ask it, they did request yourlordship that permit us to wear the hijab as dress
They say permit us to wear hijab as religious symbol. Now the ques is whether it is part of religious practice?
Once this controversy settle then ither issues may fall. What is the right of the student to enter in institution to wear anything not in reference to the religious practice but by their choice, these diff considerations art 19 considerations
J khazi- i want to ask whether essential religious practice is applicable to freedom of conscience
Asg- the concept ot freedom of conscience is something which related to belief or non belief
What you manifest your conscience relates to result in religous practice? Infact constitution assembly debates includes as to how you manifest your consciousness which amounts to religious practice. Freedom of conscience is simply what you believe and what you not believe
Asg- the ques of essential religious practice is possibly do not come in the concept of freedom of conscience
J dikshit- there are two components one is conscience, you will find the debates in constituent assembly debates. Dr ambedkar suggested along with swami iyer that there should be conscience also, there will be persons who do not believe in religion.
Asg- freedom of conscience is construed in something that you believe or not believe in. If you put in practice, it becomes practice of religion.
Cj- conscience and religion are two diff aspects
Asg- I want to show it was proposed in constituent assembly debates. It is very short sentence inwant to point page 821…
Asg- is something relates to belief or not belief, what you manifest your conscience results in religious practice.
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Asg- a lot apprehensions were exhibited by nunber of emembers at that time, in fact some the person like km munshi and others expressed if you have to adopt yourself as a secular state why do you have religious as a right? That may result in some religious olacing their hegemony over the others but they reach at concensus and say that we control this manner subject to public order, morality, health we will allow the state to intervene in finacial political matters.
Asg- br ambedkar and valab bhai, it was the say who said no we should introduce a concept of social reform to all religion.
J dikshit- the secularism which the makers of the constitution conceived in is not akin to what american constitution envisages. Ours oscillates betwren sarva sharma samabhava on the one name and dharam devakshta on the other. It is not a wall between church and government
Asg- there is a statement by mr ambedkar which says do not allow religious to come in institution context because every religion has diff prospects, there could be a clash therefore let us keep religous opeartions consciencely outside the institution. It is not above, geeta, quran or bible all of them are noble but there was a likelihood of discord or clash which they felt that consciencly kept out
Asg- there are 4 judgements i will cite today. From shirur mutt to sabarimala case, first the word was used essentially religious. What practice which is religious and in sabarimala case it was said essential to religious. J Chandrachud makes a fine distinction and says intially shirur mutt took the stand as what is religious becomes procted under art 25. Finally sabarimala they declre you have to show for the purpose of getting protection under art 25 that thenpractice for which you want protection should be not just religious but essential to religious
Cj- that is the crux? we must understand what amounts to essential
Asg relied on the judgement dargah ajmer case 1961 sc 1402 this was a case where an act was taken up legislator taking way the additional sufis followers from collection the contribution madeof dargah, that was challenged under the ground it takes away essential practice.
Asg – 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
Asg- javed case, where Haryana disqualifies the person with more than one marriage contesting elction. The plea was islam permits marriage on more than one occassion. Therefore, treatedas violation of art 25.
Asg- 1. Is that the court belief on which the religion is built upon?
2. Is this practice fundamental for the religion?
3. Is the practice is not followed then the religion will vanished?
Lastly They say you cannot say from which date ot was started, the reason is it should preceed the religion itself.
Asg- naryana dikshit v state of up, it is possible that wearing a apparel is in religious activity but it is not that every such activity can be declared out of essential religious. The court must takr the pragmatic approach in this issue.
Asg- the need for bifurcation was forst spoken of k m munshi in constituent assemblydebates where he says as we progress as independent nation, all the religion practice that we e believe curtail for the purposr of the united. He said we should our our foot strongly from all the religious practice tht divide us.
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Asg- acc to me, the art 25 had different Sections, to establish a right under the article acc to me the test are like this, they have to prove it that it is a religious practice then they must show that this essential religous practice does not come in conflict with public order, does not come in conflict eith health, morality and then does not come in conflict with any other fundamental right.
Asg- on essential religious practice, please see what SC have to say. This is the last judgement which really declares the law as conscience not only that but what is really is essential religious practice.
ASG refers to J chandrachud judgement
ASG: After all of these, I figured 4-5 principles, which has to be applied on the present case. One, the practice should be fundamental to the religion. Two, the practice cannot observe or discontinued, they result in change of religion itself. Three, very important according to me is that the practice must preceed the birth of the religion itself and very carefully, the foundation of the religion is based on that. It is not the practice should come after the religion comes. Nobody can come and say this practice started from this particular day, this is not an essential religion. Either the practice preceed or simultaneously be there, along with the birth of the religion.
Corner of stone, the foundation stone of religion mist apply.
Last one, binding nature of the religion if it is optional then it is not essential. Wearing of something is optional but if someone does not wear it and it is still permitted then it is optional not binding. It is so compulsive that if you disobey then you are not a part of the religion.
ASG: I have said the essentiality is fundamental in nature if not followed their religion will change. Next, it is not any activity which can be associated with the religion it can be characterised as religion which includes the dress. Next, one it should preceed or co extensive religion. Next is binding nature.
ASG: This is not the case where few followers have come and ask for essential ,this is a case where it is not the petitioners who have alone filed and are seeking for declaration of a particular dress format to become part of religious sanctiona so as to bind every women who follows islam religion that is the seriousness of the claim. Every women who follows islam faith require to wear the hijab as per the religious sanction as per the claim made hy the them by way of relief. But kindly see the pleading which are placed before this court.
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Asg- i wanted to open the submission and say if somebody has come before the court in particularly this case, the burden is on them. The burden rest upon them with these principles that sc have held. This practice is binding in nature if you dont follow then you are siezed to be belong to that
Asg- there are 8 writ petitions and we are going through every pleadings.
Asg- that the petitioner have not olaced any material whatsoever. Not sufficient material. It is 0 material which has been placed. Substantiate their claim of declaration that wearing a hijab is part of fundamental right to makr essential religious practice. Constitutional court must examine this matterial which has been laid down in accordance with law.
Asg- if 1+0 they want us to declare as 2 then it is not possible 1+0 will always be 1
A M Dar, Senior Advocate – These very important issues that are being raised. I seek time for the preparation. We have deriving it from Quran, there is a material.
Senior Advocate Jayna Kothari mentioned on behalf of the intervenor.
Karnataka High Court observed, “If we permit one, we will have to permit everyone as an intervenor. But right now, we do not require any intervenor so let us wait for the finishing of petitioner and respondent arguments, then we will see if we require the assistance of intervenor or not.”