State Has Power To Reform Religious Practices- Read Karnataka's Written Submissions Before SC In Hijab Cases
Today the Supreme Court concluded its hearing in the batch of appeals filed against the Judgment of the Karnataka High Court upholding the restriction imposed on the wearing of Hijab in government schools in the state. The Bench has reserved its Judgment.
In its written submissions filed before the Court, the State of Karnataka has submitted that the State has the power to reform religious practices.
In the written submissions filed through its Counsel Subhranshu Padhi, the State of Karnataka has submitted, "It is submitted that therefore, it is clear that the consistent trend of the Hon'ble Supreme Court on the issue of reform has been to allow the State a wide latitude considering the fact that the State is empowered under the Constitution for the same" and that "..if a particular practice / belief / part of any religion is in existence and is found to be subjected to either "social welfare" and "reform", such right will have to give way to "social welfare" and "reform"."
The State prayed before the Court that on the touchstone of the above-said principle, the Apex Court must examine the case of the Petitioner purportedly claiming wearing of Hijab as Essential Religious Practice.
- The issues that arise for consideration before the Court, as per the state, are:
I) The validity and effect of the Government Order dated February 5, 2022, which was impugned in the Writ proceedings before the High Court.
II) Whether the Petitioners established that "wearing of Hijab" is an essential Religious Practice under Article 25 of the Constitution of India.
III) Is the practice of wearing 'Hijab' a facet of privacy and therefore protected under Article 21 of the Constitution of India?
IV) Whether the assertion that 'wearing of Hijab' is a part of Freedom of Speech and Expression as provided under Article 19(1)(a) of the Constitution of India is correct?
V) Whether the present Special Leave Petitions merit to be referred to a Constitutional Bench under Article 145(3) of the Constitution of India, as contended by the Petitioners herein?
VI) Without prejudice to the above, the State has a wide expanse for the exercise of power, including the power to reform.
- Issue I: Validity and Effect of GO dated February 5, 2022, impugned before the High Court
The State argued before the Court that purport of the Government Order was –
"The students of the Government institution would wear uniform prescribed by the Government; ii. All private schools shall follow the uniform prescribed by the School Management; iii. All Government pre-university colleges coming under the jurisdiction of the pre-university board, shall follow the uniform prescribed by the CDC or Supervisory Committee; In the event, the dress code not being prescribed, the students shall adhere to wear such dress which inspire equality and unity without affecting public order."
Thus, it was submitted that the GO per se does not interdict/infringe any of the legal rights, much less the alleged Fundamental Rights of the Petitioners.
Further, it was also submitted that the State has left it on the educational institutions to prescribe the uniform to be worn by the students when attending the respective schools. Therefore, the entire argument that the State has acted in violation of the fundamental rights must fail.
The State has argued that in any event, the decision of the school authorities to impose a uniform within school campuses is not a restriction to be judged under Article 19 or Article 25 of the Constitution.
- Issue II: If Petitioners established that wearing of Hijab is an essential religious practice under Article 25 of the Constitution
The State while submitting this issue pleaded that the Supreme Court has interpreted Article 25 to mean that the right to practice, profess and propagate religious practice would mean the right to practice, profess and propagate Essential Religious Practice. In other words, every religious practice does not fall within the ambit of Article 25.
Further, it was also argued that the law as to what constitutes as an Essential Religious Practice is well settled and in order to establish the same, the Petitioners have to through the tests prescribed by the Apex Court in catena of decisions.
The State while referring to those decisions submitted that a practice to fall under the ken of the essential religious practice, the said threshold must be met:
"a) Practice should be fundamental to religion and must be from the time immemorial, b) If that practice is not observed or followed, it would result in the change of religion itself, c) The foundation of the practice must precede the religion itself or should be co-founded at the origin of the religion. Such practice must form cornerstone of the religion itself, d) Such practice must be binding nature of the religion itself. Practice must so compelling, e) Not every activity of associated with the religion which can be characterised as part of religion, instance, like food and dress."
The State contended that the Petitioners failed to discharge their burden that wearing of the hijab pass the muster of the above five thresholds.
Furthermore, it was pleaded that from the reference to the tests mentioned above, the Petitioners have failed to establish that the right to wear hijab is an Essential Religious Practice under Article 25 of the Constitution of India.
- Issue III: If practice of wearing Hijab covered under Right to Privacy under Article 21 of the Constitution
The State argued that the Petitioners failed to establish that the practice of wearing Hijab is an essential facet of the Right to Privacy covered under Article 21 of the Constitution.
"…it is clear that the right to privacy is not an absolute right and holds that the limitations are to identified on case-to-case basis depending upon the nature of privacy interest claimed," the State submitted.
- Issue IV: Whether assertion that wearing of Hijab is part of freedom of speech and expression under Article 19(1)(a) of the Constitution is correct
The State pleaded that in the case, it has not been established that the right to wear hijab inside a classroom is a fundamental right of expression;
"It was incumbent upon the Petitioners to explain what is the expression that they seek to convey by wearing a hijab, which the Petitioners have failed to do.
In the case, he rights of the students (Petitioners) are regulated by the provisions of Karnataka Education Act and Rules made thereunder. It is submitted that the said provisions are a complete code in itself and the right to prescribe a uniform for students is governed by provisions thereunder;
Test of invasion of Article 19(1)(a) right is required to be examined by the test of Pith and Substance of the impugned Legislation."
The State thus submitted that taken on the aforesaid parameters, the Petitioners have failed to establish that the right to wear Hijab forms part of Freedom of Speech and Expression as provided under Article 19(1)(a) of the Constitution of India.
It was also pleaded that if the right to wear hijab is a right conferred under Article 19 (1) (a), the same is subject to the reasonable restriction under Article 19(2) and the educational institute imposing a uniform is a reasonable restriction.
- Issue V: Whether the SLP merit to be referred to Constitutional Bench under Article 145(3) of the Constitution
The State contended that only a substantial question of law with regards to interpretation of the Constitution in the context of Article 145(3) can be referred to Constitutional Bench.
"It is a settled position by Constitutional Courts that the Court has never determined whether a particular practice/Essential Religious Practice was free or proper. Instead, the Courts have asked the persons contending the same to be an Essential Religious Practice to plead and prove the same with evidence including the source of the practice in question from religious texts. In the present case, whether the practice of hijab is an Essential Religious Practice or not is purely a question of fact," the State argued.
- Issue VI: Whether the State has wide expanse for exercise of power including power to reform
It was submitted that the State as per Article 25 and Article 26, holds the mandate for reform.
Further, it was also argued that the very fact that the Constitution has negatively couched Article 25, makes it extremely clear. Article 25(2)(a) gives primacy to laws made by competent legislature for regulation of secular aspects and Article 25[b] gives primacy to "social welfare" and "reform".
"In other words, if the State seeks to regulate the economic, political, financial or other secular aspects connected with religion, the State law is to have primacy over the proposed right. Similarly, if a particular practice / belief / part of any religion is in existence and is found to be subjected to either "social welfare" and "reform", such right will have to give way to "social welfare" and "reform."
Thus, the State pleaded, "It is submitted that therefore, it is clear that the consistent trend of the Hon'ble Supreme Court on the issue of reform has been to allow the State a wide latitude considering the fact that the State is empowered under the Constitution for the same. On the touchstone of the above said principle, this Hon'ble Court must examine the present case of the Petitioner purportedly claiming wearing of Hijab as Essential Religious Practice in such dimensions as elucidated in the judgements above. In the context of the constitution ideology as expounded in judgment above, it would be impermissible for Petitioner to contend and seek a declaration that wearing of hijab by way of religious sanction to all women following Islamic faith would result in violation of dignity and morality."
Cause Title - Miss Aishat Shifa & Anr. v. State of Karnataka & Ors. [SLP (Civil) No. 5236 of 2022]