Karnataka hijab ban verdict
http://x-tige.com/designers/cres-e-dim-fw14 the Supreme Court delivered a split verdict on students’ right to wear hijab in school, both judges on the Bench seemed to agree that believers or worshippers are the best persons to interpret whether a practice is essential to their religion or not.
The Karnataka High Court had concluded that wearing hijab was not an essential religious practice (ERP) in Islam.
- Justice Hemant Gupta said the “practice of wearing hijab may be a ‘religious practice’ or an ‘essential religious practice’ or it may be social conduct for the women of Islamic faith. The interpretations by the believers of the faith about wearing of headscarf is the belief or faith of an individual”.
- He said ‘secularity’ meant uniformity, manifested by parity among students in terms of uniform. He further states , The Right to express herself by wearing a hijab ,stops at the school gate . Freedom of expression guaranteed under Article 19(1)(a) does not extend to the wearing of headscarf
- Justice Dhulia, in his divergent opinion, said the issue whether wearing hijab was an essential religious practice in Islam was wholly irrelevant in the case. He said students claiming protection under Article 25were not required to establish that wearing hijab was an essential religious practice.
What does the split verdict mean?
- The split verdict means that the matter will now be placed before the Chief Justice of India for further directions — it will likely go to a larger bench. And until the Supreme Court issues any direction, the ban on the hijab in Karnataka classrooms will remain in place.
How is Religious Freedom Protected under the Constitution?
- Article 25(1) of the Constitution guarantees the “freedom of conscience and the right freely to profess, practise and propagate religion”.
- It is a right that guarantees a negative liberty — which means that the state shall ensure that there is no interference or obstacle to exercise this freedom.
- However, like all fundamental rights, the state can restrict the right for grounds of public order, decency, morality, health and other state interests.
What is the Essential Religious Practises Test?
- Over the years, the Supreme Court (SC) has evolved a practical test of sorts to determine what religious practises can be constitutionally protected and what can be ignored.
- Essential religious practice (ERP) test is a doctrine evolved by the supreme court (SC) to protect only such religious practices under fundamental rights, which are essential and integral to religion. The doctrine of “essentiality” was invented by the SC in the Shirur Mutt case in 1954.
- The test, a judicial determination of religious practises, has often been criticised by legal experts as it pushes the court to delve into theological spaces.
How to deal with Issue ?
- In the prevailing climate, the Karnataka government mandating either a prescribed uniform or any dress that was “in the interest of unity, equality and public order” was seen as majoritarian assertion in the garb of enforcing secular norms, equality and discipline in educational institutions.
- A verdict that legitimises this non-inclusive approach to education and a policy that may lead to denial of opportunity to Muslim women will not be in the country’s interest.
- This case is the guiding star which will show us the path laid down by the well-established principles of our Constitutional values, the path of understanding and tolerance, which we may also call as “reasonable accommodation.”