New Delhi: Two judges of the Supreme Court gave a divided verdict The hijab controversy opted not to investigate whether wearing a headscarf equated to an essential religious practice (ERP) in Islam.
In his differing opinion on the hijab ban, while Justice Hemant Gupta dismissed the petitions filed by Muslim girl students, Justice Sudhanshu Dhulia upheld them and set aside the Karnataka government’s February 5 order that imposed wearing of headscarfs in educational institutions. It was like a ban.
But neither elaborated on whether wearing the hijab was a necessary religious practice in Islam, although the petitioners claimed it to be one. Incidentally, the Karnataka HC in its March 15 judgment had declared the ban valid on the ground that it was not an essential religious practice.
Though both the petitioner and the state government made extensive arguments on ERP in the apex court, the bench decided not to dwell on the issue.
Read also: Discriminatory to compulsory religious practice – what appellant, state told SC in hijab case
ERP Testing, Principles
ERP is a principle developed by the apex court over the years and governs which religious practices are protected under Articles 25 and 26 (Fundamental Rights to practice, profess, propagate religion and manage religious affairs).
However, Article 25(2) empowers a State to notify a law to regulate any economic, financial, political or other secular activity which may be connected with religious practice to provide for social welfare and reform. Is.
The ERP test allows courts to determine what practices are essential to a religion and whether removing them would change the nature of that religion. The ERP doctrine dictates that only essential religious practices are protected from government interference.
In the apex court, the petitioners argued that wearing headscarf is an ERP practiced by Muslim women since time immemorial. It was argued that the practice has been provided for in the religious texts of Islam and is thus essential to the religion.
The government order, he submitted, imposed on his right to wear a headscarf as an ERP and thus violated his rights under Article 25.
Some of the petitioners also said that it is not for the court to decide what constitutes an ERP.
On the other hand, the Karnataka government said that wearing hijab can be a custom or norm or permissible practice, but not ERP. The state’s counsel argued that more requests needed to be made and that it should be shown that not wearing a headscarf would endanger the identity of a person who believes in that belief.
‘Basic Faith, the Ticket to Education’
After examining several judgments of the apex court and interpretations of Quranic verses, Justice Gupta observed that the ERP principle evolved when the state interfered with religious places or religious festivals or certain practices relating to the performance of religious rituals in public Or where such practices undermined fundamental rights.
But in the present case, the judge said, the petitioners did not want to perform a religious activity in an institution, but wanted to wear a scarf in a public place as a matter of social conduct, which was expected of the believers of the faith. Here, he said, students “want to subject their freedom of dress of choice to be regulated by religion rather than by the state”.
He rejected the petitioners’ attempt to draw comparisons with Sikh practices in support of their case.
The judge said that the ERP of the followers of Sikhism cannot be made a ground to wear hijab/headscarf by the believers of Islam. “The practices of each religion should be examined only on the basis of the principles of that religion,” Justice Gupta said without rendering a conclusive conclusion on the ERP.
As per the interpretation of Justice Dhulia, Essential Religious Practice Test This was not necessary to settle the dispute and courts have used this test for years. to come to a conclusion The Right to Religion under the Constitution will only protect the ERP and not all religious practices.
He added that such practices comprise the “core beliefs” upon which a religion is founded.
However, the present case was about a person’s right to choose and there is no need for a person to establish that the practice he claims is a necessary religious practice.
Justice Dhulia observed that “it can only be a religious practice, may be a matter of faith or conscience”, and stressed that the trial comes into play only when the court deals with the matters involved. “A Community Right”“(Rights of a community as a whole).
“It may or may not be a matter of necessary religious practice, but it is still a matter of conscience, belief and expression. If she wants to wear the hijab, even inside her class, she cannot be stopped. may, if worn it matters of her choice, as it may be the only way her conservative family will allow her to go to school, and in those cases, her hijab is hers education ticketJustice Dhulia wrote.
With the two judges differing from each other on other questions of law, the matter will now be placed before a three-judge bench of the Supreme Court. Whether the larger bench will look into the ERP issue is yet to be seen.
(Edited by Amritansh Arora)
Read also: ‘Karnataka Govt’s Hijab Order Promotes Equality’: SC Judge Gupta’s Opinion In Divided Judgment