The All India Muslim Personal Law Board has moved the Supreme Court against the Karnataka High Court judgment which held that Hijab is not an essential religious practice (ERP) of Islam and, thereby, upheld the power given to colleges to ban wearing of hijab in college campus.
The AIMPLB along with two other petitioners have contended that High Court did not address the core issue of whether or not it was necessary to consider the doctrine of essential religious practice where the petitions have asserted their Fundamental Rights under Article 25(1) and 19(1)(a).
Further, it was stated that the idea of bringing uniformity could not be placed on such a high pedestal that it amounted to negation of other constitutional and basic rights of different groups.
“Hence laying too much emphasis on bringing “uniformity” in the uniform without accommodating a person of one religion ‘to cover her hair with a piece of cloth’ is travesty of justice,” the plea stated.
The petition also emphasised that the determination of ‘essentials’ under the principles of essential religious practice fell within the complete autonomy of the religious denomination according to tenets of a religion.
“Over a period of time, it appears that the Courts have completely taken upon themselves the task to determine what are the essentials and integrals of any and every religion practiced in our country for the purpose of regulatory control over them by the State authorities,” it was submitted.
It was also submitted that the concept of intelligible differentia was given a completely erroneous interpretation by the High Court by grouping all the students in uniformity.
The plea claimed that the High Court of Karnataka failed to appreciate the legal impact of developments made by way of the judgments in KS Puttaswamy v Union of India and Kantaru Rajeevaru v Indian Young Lawyers Association.
The petitioners claimed that since the High Court did not maintain clarity while framing questions, the discussions on diverse constitutional principles resulted in conceptual overlapping leading to indirect discrimination.
“The ground reality is that the petitioners are compelled to remove their Hijab to avail the right of education, at the cost of self – respect and dignity,” it was contended.
Pertinently, it was also submitted that as far as interpretation of scriptures in the Quran is concerned, there is a consensus among Islamic religious scholars of all schools of thought that the practice of Hijab is mandatory.
At least two appeals are already pending before the top court against the Karnataka High Court verdict.
The Supreme Court had last week declined request for urgent listing of appeals against the High Court verdict.
The matter was mentioned before Chief Justice of India (CJI) NV Ramana by Senior Advocate Devadatt Kamat but the CJI asked the petitioners not to sensationalise the issue and refused to give any specific date for hearing the matter.