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Synopsis

Chief Justice of India (CJI) NV Ramana on Tuesday said that a bench has to be constituted in order to list the appeals challenging the order of the Karnataka High Court holding that Hijab is not an essential religious practice.

The matter was mentioned before a bench headed by the Chief Justice of India and consisting of Justices Krishna Murari and Hima Kohli. Senior Counsel Meenakshi Arora mentioned the matter and sought its listing. Replying to her, the CJI said that one of the judges of the court is unwell and a bench has to be constituted for hearing the matters.

Arora told the bench that the verdict was pronounced in March and requested for a date of listing to be indicated. The CJI said that they would have done it, had the judge been fine. The matter was earlier mentioned in July 2022 by Advocate Prashant Bhushan. The CJI had indicated then that it would be listed in the following week, however, the matter has not come up for hearing yet.

Earlier, when the matter was mentioned by Senior Advocate Meenakshi Arora, the Court refused to list the matter and asked the parties to wait for 2 days. Whereas, when the matter was mentioned by Senior Advocate Devdatt Kamat, the bench refused to entertain the request.

"Don't sensitize the matter, it has nothing to do with exams," the CJI Ramana had said after Senior Advocate Kamat mentioned the plea stating that the girls are not being allowed to enter the school premises, whereas, their exams are scheduled after a week.

A batch of petitions alleged that the High Court has failed to note that the Karnataka Education Act, 1983, and the Rules made thereunder, do not provide for any mandatory uniform to be worn by students. Whereas the Act reveals that it aims to regulate the institutions, rather than the students, the plea added.

It may be noted that during the pendency of the issue before the High Court, a petition was filed before Supreme Court over the same issue, to which, a bench comprising the Chief Justice of India NV Ramana, Justice AS Bopanna, and Justice Hima Kohli had said that "It's too soon to interfere with the High Court, let them decide, as soon we list the matter the High Court stops hearing it."

The Karnataka High Court, in its judgment, observed that "what is not religiously made obligatory... cannot be made a quintessential aspect of the religion through public agitations or by the passionate arguments in courts."

The High Court rejected the petitioners' contention that the girl students have the freedom of conscience guaranteed under Article 25 and observed that "there is no evidence that the petitioners chose to wear their headscarf as a means of conveying any thought or belief on their part or as a means of symbolic expression. Pleadings at least for urging the ground of conscience are perfunctory, to say the least."

The High Court said, "if a person who seeks refuge under the umbrella of Article 25 of the Constitution has to demonstrate not only essential religious practice but also its engagement with the constitutional values...It’s a matter of concurrent requirement. It hardly needs to be stated, if essential religious practice as a threshold requirement is not satisfied, the case does not travel to the domain of those constitutional values."

Notably, the High Court added, "Whichever be the religion, whatever is stated in the scriptures, does not become per se mandatory in a wholesale way. That is how the concept of essential religious practice, is coined. If everything were to be essential to the religion logically, this very concept would not have taken birth."

Case Title: X Vs. State of Karnataka and Connect Matters