Karnataka Advocate General Prabhuling Navadgi on Monday, 21 February, reiterated that the Karnataka government was not imposing any rules for uniforms/dress codes in educational institutions, including the banning of hijabs, and was instead leaving this to the institutions to decide.
At the same time, on being asked by the bench of the Karnataka High Court for the Basavaraj Bommai government's stance, he reiterated what he had said on Friday, that the wearing of a hijab cannot be considered an essential religious practice in Islam.
The Advocate General also criticised the various petitioners in the ongoing case who had approached the court asking for protection of Muslim students' right to wear hijabs to classrooms, saying they had "placed zero material on record to show that wearing hijab is an essential religious practice."
In addition, Navadgi also cautioned against the nature of the petitions and what they are asking for:
"This is not a case where some followers have come to the court, like the Sabarimala matter. This is a case where it is not petitioners alone who have come to the court. They have asked for a declaration that every woman who follows Islamic faith is required to wear hijab. Look at the seriousness of this, they want a declaration which can bind every Muslim woman."
The proceedings can be viewed on the Karnataka High Court's YouTube channel here:
What is an Essential Religious Practice?
The question of whether or not wearing a hijab is an essential religious practice is relevant to this case as it is a longstanding principle in Indian constitutional law that a person cannot try to argue that their fundamental right to practice their religion is being restricted by the state, if what is being restricted is not an essential religious practice.
The principle has its origins in the Constituent Assembly debates, but over the years saw an evolution in the way the Supreme Court interpreted the matter, as pointed out by Navadgi in his arguments before the high court.
While originally the idea was to look at whether a particular practice was 'essentially religious' or not (based on the view of Dr BR Ambedkar, who was concerned that nearly any practice could be tied to religion in the Indian context), the apex court over the years modified the test to look at whether not a particular practice was essential to the religion in question.
After taking the judges through the key judgments of the Supreme Court on this matter, including most recently in the Sabarimala case, the Advocate General culled out the following principles which had to be followed to determine whether any particular practice is an essential religious practice (ERP):
That practice has to be fundamental in nature for the religion.
If not followed, the religion would change.
Not every activity associated with religion can be characterised as an essential religious practice – when it comes to food or dress this has to be conclusively demonstrated to the court.
The practice in question should be something which has been part of the religion from the start, it should not be a subsequently developed practice.
The binding nature of the practice – is it optional or compulsory, and will a person face consequences for not following it.
On Tuesday, Navadgi will explain to the bench of Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and JM Khazi how the wearing of a hijab doesn't meet these criteria. The court will be resuming its hearing at 2:30 pm.
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