Wearing Hijab Not An Essential Religious Practice, Says Karnataka High Court

[TheSolution]

This same discussion is had every other day on this forum

As long as Sikhs are allowed their headpiece, any argument an Indian makes falls flat. It's targeted at one religion, hence discrimination.

 

[Fireurimagination]

Ghoonghat is optional. But Hijab is mandatory for Muslim females as Muslim members have pointed out.

Do you want to deny them education because of the religion they follow?

View attachment 824528

No it's not, the court has ruled the same. In fact hijab, burkha is fairly new phenomenon. When we use to go to school hardly anybody, in fact zero girls used to wear hijab/burkha and there were a ton of Muslim and Muslim girls in my locality. As stated earlier there would be many maulvis who would say not hijab but burkha is essential practice, now you don't expect private convent school to allow girls wear burkha to school.

 

[Joe Shearer]

This ban is only inside classrooms. They can wear whatever they want outside. No restrictions on it.

No.

It is on schools that have with the consent of the local authorities stipulated a school uniform (also applies to colleges). A school or college that allows a hijab will freely allow hijabs to be worn inside or outside a classroom.

As you have said, it does not apply to wear outside a designated classroom of an institution with a designated uniform.

As long as Sikhs are allowed their headpiece, any argument an Indian makes falls flat. It's targeted at one religion, hence discrimination.

The headpiece, as you call it, the turban, has never been ruled an essential practice of the Sikh religion. The five K's have been. The turban is a convenience, and even the turban is being replaced with protective helmets progressively.

Thanks to @LeGenD for shifting off topic posts from other threads over here.

 

[Akshay89]

No it's not, the court has ruled the same. In fact hijab, burkha is fairly new phenomenon. When we use to go to school hardly anybody, in fact zero girls used to wear hijab/burkha and there were a ton of Muslim and Muslim girls in my locality. As stated earlier there would be many maulvis who would say not hijab but burkha is essential practice, now you don't expect private convent school to allow girls wear burkha to school.

Court is wrong. So are schools & colleges.

It's none of their business if a Muslim female wants to wear a Burkha. They are paying fees to attend. Education is not for free.

 

[Joe Shearer]

There is so much misunderstanding of the Indian courts rulings on Essential Practices of Religion that in a private forum, I had reproduced examples of their rulings, to allow people to get some context.

I am reproducing those rulings (the precis only, not the full judgement) here, for context.

In 1954, a 7 Judge Bench of the Supreme Court held that “[w]hat article 25(2)(a) contemplates is not regulation by the State of religious practices as such, the freedom of which is guaranteed by the Constitution except when they run counter to public order, health and morality, but regulation of activities which are economic, commercial or political in their character though they are associated with religious practices.” The Court rejected a suggestion by the Advocate General of Madras which proposed that only “essential” practices of a religion be given constitutional protection, pointing out that “what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.”

1959
Sardar Sarup Singh v State of Punjab
The Supreme Court heard a challenge against section 148-B of the Sikh Gurudwaras Act, 1925, which provided for the setting up of a Gurudwara Board and introduced new members. The petitioners argued that s. 148-B infringes Article 26(b) of the Constitution, which grants every religious denomination the right to manage its own affairs in matters of religion, for it does not allow for direct elections of members of the Board by the Sikh Community. The argument advanced by the State of Punjab was that matters of religion in the sense of essential beliefs and practices of the Sikh faith are left untouched by section 148-B, and even other relevant sections of the principal Act do not interfere with Sikh religion. Applying what is now known as the ‘essential religious practices test’, the Supreme Court upheld the constitutionality of section 148-B. It was observed that no authoritative text had been placed before the Court to show that direct election by the entire Sikh Community to the Gurudwara Committees in charge of the management was essential to the religion itself.

1961
Durgah Committee, Ajmer v Syed Hussain Ali
The Supreme Court decided on a challenge to the Dargah Khwaja Saheb Act, 1955 which claimed that it violated the fundamental rights of Muslims belonging to the Soofi Chistia Order. They members of the order claimed it was they who were the sole custodians of the shrine at Ajmer. The Act, however, permitted all Hanafi Muslims to partake in the maintenance and affairs of the Dargah. The Court rejected the challenge to the Dargah Act observing that the tomb had never been confined to members of the Soofi Chistia Order. The Court further held that in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Article 26. Similarly, even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. The protection must be confined to such religious practices as are an essential and an integral part of it and no other.

 

[Joe Shearer]

1962
Sardar Syedna Taher Saiffuddin Saheb v State of Bombay
The Supreme Court applied the ERP test to determine whether the Bombay Prevention of Excommunication Act, 1949 violated the fundamental rights under Articles 25 and 26 of the Dawoodi Bohra Community. The Head Priest of this community was vested with certain powers, one of which included the power of excommunication, which was to be exercised in accordance with the tenets of the community. Such power, it was argued, was integral to the religious faith and beliefs of the Dawoodi Bohra Community which was a religious denomination under Article 26 of the Constitution. With a 4:1 majority, the 5 Judge Bench of the Supreme Court upheld the right and power of excommunication bestowed upon the Head Priest of the Dawoodi Bohra Community. It was further observed that what constitutes an essential practice is to be gathered from the texts and tenets of the religion. The legislature, the Court added, was not permitted to reform a religion out of existence or identity.

1963
Tilkayat Shri Govindlaji Maharj v State of Rajasthan
In a challenge to the Nathdwara Temple Act, 1959 enacted by the State of Rajasthan by the Tilkayat, the question before the Court was whether the tenets of the Vallabh denomination and its religious practices restricted worship to private temples managed by the Tilkayat alone. If so, would an Act enacted for the management of the Temple would be ultra vires the Constitution in view of Article 25. It was held that a practice is considered essential to a religion if it is essential to the community following the religion. Furthermore, Article 25(1) and 26(b) offers protection to religious practices. Affairs which are purely secular may be regulated by statute without infringing the aforesaid articles. In order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Article 26.

1972
Seshammal & Ors v State of Tamil Nadu
Questioning the validity of the Tamil Nadu Hindu Religious and Charitable Endowments (Amendment) Act, 1970, the petitioners claimed a violation of Articles 25 and 26 of the Constitution. The Court disagreed. It was held that the purpose of the Act was to regulate secular functions like management and administration, which included the appointment of the Archaka. It did not however aim to regulate or change the rituals and ceremonies followed in the temples. The Court however clarified that while the appointment of Archakas was a secular function, the sect or denomination from which they were to be appointed was to be in accordance with the Agamas as that was essential to and firmly embedded in the religion.

1997
Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi & Ors. v State of UP & Ors
Upholding the validity of the U.P. Sri Kashi Vishwanath Temple Act, 1983, the court drew a distinction between the religious and secular functions of the Temple. The impugned Act, it was held, only pertained to the latter, i.e. the secular functions of administration and management of the Temple. These were not essential or intrinsic elements to the practice of the religion and the Legislature was thus competent to enact a law that did not entrust the Government with the power to interfere with the day-to-day religious practices.

2004
Commissioner of Police v Acharya Jagadisharananda Avadhuta
The Court applied the test of essential religious practices in deciding whether the Tandava Dance was an essential rite of the Ananda Marga Faith as held by the High Court. Though the Ananda Marga faith was founded in 1955, the Tandava dance was introduced to its followers in 1966 and was prescribed as an essential religious practice in the Carya Carya in 1986. Despite this scriptural injunction, the Court in its majority opinion held that the Tandava Dance was not an essential practice of the Ananda Marga faith. The Court observed that in order to determine whether or not a particular practice is an essential part of religion, the test must be whether the absence of the practice itself fundamentally alters the religion.

2016
Adi Saiva Sivachariyargal Nala Sangam v Government of Tamil Nadu
An amendment to the Tamil Nadu Hindu Religious and Charitable Endowments in 1970 abolished the practice of appointing religious office holders on a hereditary basis. The Court upheld the amendment’s constitutionality in 1972 in the Seshammal Case. However, in 2006, a government order was issued directing that Archakas of the temples were to be appointed without any discrimination stemming from customs on the basis of caste or creed. This Government order was for interfering in essential matters of the denomination of Archakas. Relying on the decision in Seshammal, the Court reiterated that though appointment was a secular function, the denomination of the Archakas must be in accordance with the Agamas. The Agamas restricted the appointment of Archakas to particular religious denominations. However, the Court did go on to hold that religious treatises like the Agamas must conform to the constitutional mandate and not practice exclusion on the basis of constitutionally prohibited criterion like Caste.

2017
Shayara Bano v Union of India
Rejecting the argument that the practice of Triple Talaq was an essential practice under Islam, the Supreme Court held that it was not an essential practice and could not be offered constitutional protection under Article 25. The Court held that it was against the basic tenets of the Quran and thus violative of the Shariat. A practice that is merely permitted or not prohibited by a religion cannot be considered an essential or positive tenet sanctioned by that particular religion. Triple Talaq is only a form of talaq which is permissible in law, but at the same time, stated to be sinful by the very Hanafi School which tolerates it. Therefore, this would not form part of any essential religious practice as the fundamental nature of the Islamic religion, as seen through an Indian Sunni Muslim’s eyes, will not change without this practice.

 

[N.Siddiqui]

This Hijab ban will make India great again.

The most pressing, most important step being taken finally which was a direct, present threat to the security and sovereignty of India.

Hijab was a clear and present danger to a free India.

 

[Fireurimagination]

Court is wrong. So are schools & colleges.

It's none of their business if a Muslim female wants to wear a Burkha. They are paying fees to attend. Education is not for free.

It's absolutely their business, they are caretakers of the institution and it's their job to decide the rules for student in the institution not the other way around. In fact if these students would not have been muslims they would have been rusticated long back for indiscipline.

Somebody in a TV debate yesterday said there is a stream in Jainism followers of which don't wear clothes, imagine pupils of the said faith wanting to practise their religion in schools or somebody wanting to wear mini-skirts stating 'My Life - My Choice - My Rules' or girls wanting to wear guys uniform and vice versa

 

[Akshay89]

It's absolutely their business, they are caretakers of the institution and it's their job to decide the rules for student in the institution not the other way around. In fact if these students would not have been muslims they would have been rusticated long back for indiscipline.

Unfair and discriminatory rules need not be followed.

Even in the US, schools and colleges have problem no with hijab. But in India, Muslims are being targeted.

 

[fitpOsitive]

Here I want to pay my tribute to great scholar of Islam, Mr Javed Ahmed Ghamidi, whose great work enabled the defeat of Muslims in Kerala.
Kia kahy banda aisy logon ko.

 

[Fireurimagination]

Unfair and discriminatory rules need not be followed.

Even in the US, schools and colleges have problem with hijabs. But in India, Muslims are being targeted.

The rules are uniform for all. Pupil are free to take admission in schools/colleges that permit hijab/burkha or where it is part of uniform.

 

[Zarrar Alvi]

New Delhi:
A hijab is not an essential religious practice, the Karnataka High Court said today in a huge setback to students who had challenged a ban on wearing the hijab in class. Five petitions had challenged the ban in court.

Ahead of the order, the state government banned large gatherings for a week in state capital Bengaluru "to maintain public peace and order". Mangalore too banned large gatherings from March 15 to 19. Schools and colleges are closed in Udupi today.

The Karnataka High Court had temporarily banned religious clothes, including Hijab and saffron scarves, last month as the controversy snowballed into protests and a face-off between different sections of students.

Karnataka High Court decision to uphold hjab ban is deeply disappointing": Former Jammu and Kashmir Chief Minister Mehbooba Mufti.

Highlights: Wearing Hijab Not An Essential Religious Practice, Says Karnataka High Court

A hijab is not an essential religious practice, the Karnataka High Court said today in a huge setback to students who had challenged a ban on wearing the hijab in class. Five petitions had challenged the ban in court.

www.ndtv.com

@Sharma Ji @jamahir @Maira La @Rollno21 @Joe Shearer @N.Siddiqui @Naofumi

Thank you Modi Chai wala . He is doing what the ISI is unable to do in 70+ years. Create a communal divide wait for the right time to arm the Muslims of India against the Hindutvas. It's going that way and I am loving it.

 

[Akshay89]

The rules are uniform for all. Pupil are free to take admission in schools/colleges that permit hijab/burkha or where it is part of uniform.

Such rules violate Right to freedom of religion of the Indian constitution.

Muslims can wear, hijab, burqa and hand gloves if they want. No one should stop them from attending schools and colleges

 

[Joe Shearer]

So in Sikhism the turban was originally a cultural garment, not part of Guru Nanak's teachings, and only in 1699 - 160 years after the death of Guru Nanak - was the turban made part of the faith to hold the hair grown also as part of the faith. But as per the teachings of Sikhism I don't think one stops being a follower of Nanak's teachings if one doesn't wear a turban

The turban is emphatically not an essential practice of the Sikh religion.

You mentioned the Panj Piara ceremony of Guru Gobind Singh. In an open assembly, he called for volunteers to sacrifice their lives for the faith. When the first volunteer stood up, the Guru took him behind a curtain, and returned with a blood-smeared sword. He repeated this call four times more.

At the end, he went behind the curtain and led back the five, all alive; goats had been sacrificed in their place. He made them mix sugar and water, stir it with a dagger, and drink this in common, breaking their caste restrictions. He then ordained that Sikhs should display (wear, actually; not all could be displayed in decency) the five K's of the Sikh - Kesh (hair), Kanga (the comb, worn in their hair), Kara (the iron band around their wrists), Kirpan (a dagger, usually a small four inch piece sealed into the scabbard, worn only symbolically) and Kachha (drawers).

These are the essential signs of a Gursikh.

The turban is a convenience.

 

[Joe Shearer]

The intervene of Indian court into Islamic faith should be brought to OIC meeting. This is a serious matter that should have a respond from Muslim world.

That is a silly thing to say.

Indian courts adjudicate on matters relating to the Indian constitution, not, per se, on religion. The Indian constitution has several clauses that come to court attention, from time to time. These are clauses 19, 25 and 26. The court rulings are strictly in respect of these.

I am really surprised to read this post from a responsible and mature member of the forum.

It's the latest in a long line of anti Muslim actions, whilst at the same time trying to force every kind of weird hindu craziness on everyone

They have ruled in accordance with what they are supposed to do, that is, in this case, decide if the hijab is an essential religious practice or not, and whether or not this practice should prevail or the uniform stipulation of a private institution should prevail.

The ruling was in the context of Art. 25 and Art. 26 of the Indian constitution.

What to wear and not is a basic human right.

Yes, and no.

Do please take a look - I have repeated this several times in several places, and if I am repeating myself, it is regretted - at the Indian constitution, specifically at Art. 19, Art. 25 and Art. 26.

These are subject to public order, health and morality.