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Advocate General (AG) of Karnataka Prabhuling Navadgi while referring to a gamut judgments, today argued that there are three tests to establish whether a certain practice is an essential religious practice (ERP) or not. He was rebutting the petitioner(s) arguments to state that wearing Hijab is not an essential religious practice.

Navadgi's skeletal arguments proceeded on the ground that the Hijab does not pass the test of an "ERP".

According to him for a practice to pass the test of an ERP, firstly, the practice should be core belief of the religion secondly, the practice must be fundamental to that religion, thirdly, if the practice under scanner is not followed, the religion will vanish. He further submitted that the religion should have been built on the practice.

A Special Bench of Karnataka High Court headed by CJ Ritu Raj Awasthi and comprising Justices Krishna Dixit and JM Khazi were hearing plea(s) by girl students challenging the alleged ban of wearing Hijab in government pre-university colleges in Udupi district.

When the hearing for the matter commenced, AG referred to the constitutional assembly debates to establish that freedom of conscience be construed as what you believe in and what you dont believe in. 

He said,

“Either to believe or not to believe, what you manifest is practice of religion. Ambedkar asked why do you insist on someone to profess a religion?” The AG further argued that  f freedom of conscience was not there and right to practice was there, the founding fathers believed that it would force persons to do certain things.

It was argued that Dr. Ambedkar had specifically asked not to allow religion to come in institutions as every institution is different and  it would lead to clashes.

The court at this point remarked,
“Supreme Court has also said the same. Our constitution did not enact what Karl Marx had said "opium of masses.”

The AG continued to argue that what Article 25 protects is not practice of religion but ERP. "In Sabarimala they say it should be essentially religious to be protected with Article 25," he said

The AG further read the judgment of the Supreme Court in Javed Vs State of Haryana, where by the State had passed a law prohibiting people who had married more than once from contesting election.

The AG submitted that it was argued in the Supreme Court that marrying more than once is an essential religious practice among Muslims and that such a law is unconstitutional. The AG further referred to Acharya Jagdishwaranand Vs Commissioner Of Police which held the performance of Ananda Thandava in a public place is not an essential religious practice.

He referred to RI VENKATARAMANA DEVARUAND OTHERS Vs State of Mysore, whereby Gowda Saraswathy Brahmins restricted the right to enter their temple to a certain class of people, as it constituted their essential religious practice. 

The matter went to Supreme Court and the court held that while restricting people from entering temple is unconstitutional, Brahmins had the right to perform their rituals. The AG said, “The entire law relating to ERP has been put in a consolidated way in Sabarimala case. KM Munshi says which should put our foot down all RP which will divide the country” The AG further argued that "We are in a stage where we must unify and considerate the nation without interfering with religious practice. Rest of life must regulated that we may evolve as early as possible.”

AG referred to the portion of the Sabarimala judgment which said,
 "One test involved will be if we remove the particular practice, would the religion remain same or will it be altered?"

The AG said,

"The tests are 1)They have to prove its a religious practice, 2) then ERP, 3) it does not come in conflict with public order, morality and constitutionality.”

The AG encapsulated his arguments by laying down these 4 tests to establish Essential Religious Practice

1. Practice should be fundamental in that religion
2. If the practice is not followed it would result in change of the religion itself.
3. This practice must precede the birth of the religion itself, the foundation
4. The binding nature of this practice on the religion. If It is not optional, it is not essential. It must be compulsive that if you disobey you cease to be a part.

The AG also quoted 4 cases whereby the Supreme Court and Karnataka High Court had held that merely because something finds a place in Quran, it does not amount to essential religious practice. They were

1. Mohd. Hanif Quareshi & Others vs The State Of Bihar- Where sacrifice of animals were held not to be essential religious practice
2. Javed Khan Vs State of Haryana - Where polygamy among Muslims were held not to be an essential religious practice.
3. Babri Masjid Case- Wherein when the land of the Masjid was taken away by the government, Quran was quoted. It was argued to be an essential religious practice, however the court refused to accept it.
4. In Karnataka High Court a hotel land belonging to a Wakf board, it was leased to hotel. The lease was challenged because the hotel sold wine and pork. The HC said it can't be considered. I

On the last date of hearing, the AG had argued that Hijab will have to stand twin test of Individual Dignity & Constitutional Morality to come in ambit of Essential Religious Practice: Advocate General for State of Karnataka

The AG said he was in a position to establish this in legal terms before the court. However, due to paucity of time, the matter has been adjourned to tomorrow (22.02.2022) at 2.30 PM.

 

Case title: X Vs State of Maharashtra