Too early to intervene in Karnataka hijab row, says Supreme Court

Let High Court examine issue, says CJI in response to plea for transfer of case

Updated - February 10, 2022 12:23 pm IST

Published - February 10, 2022 12:20 pm IST - NEW DELHI

A view of the Supreme Court of India in New Delhi. File

A view of the Supreme Court of India in New Delhi. File

The Supreme Court on Thursday said it was “too early” for it to intervene in the Karnataka hijab row when the State High Court was hearing it.

Also read | Amid Karnataka hijab row, focus is on 1986 Supreme Court verdict

The court’s response came to a plea made by senior advocate Kapil Sibal to transfer the petitions from the High Court to the top court and to place it before a nine-judge Bench examining questions of law on religious freedom emanating from the Sabarimala review verdict.

Mr. Sibal, in an oral mentioning, said girl students were being stoned and educational institutions in the State remain closed. The senior lawyer said the top court should at least list the case immediately.

Chief Justice of India N.V. Ramana said a three-judge Bench of the High Court was hearing the case on Thursday and should be given at least a day’s time to take a call.

“Let the High Court examine the issue. We know that a three-judge Bench is scheduled to hear the case today. Give them at least a day’s time. It is too early for us to interfere,” the Chief Justice reacted to Mr. Sibal’s plea.

Karnataka hijab controversy: Stories behind the story

Mr. Sibal said the question whether hijab could be worn inside educational institutions as part of the fundamental right to religious freedom under Article 21 had to be placed before the nine-judge Bench (originating from the Sabarimala review case) of the Supreme Court for a final decision.

“At least have it listed, My Lord,” Mr. Sibal requested.

“The problem is if we list it, the High Court will never hear it. We are not saying anything on merits,” the CJI said.

Mr. Sibal said exams were due soon in the State and the issue was spreading to other parts of the country, requiring the top court’s intervention.

“Just have it listed,” Mr. Sibal pleaded again.

“Let me see, let me see,” the CJI said.

2020 order

In February 2020, the Supreme Court had upheld the decision of the Sabarimala Review Bench to refer to a nine-judge Bench questions on the ambit and scope of religious freedom practised by multiple faiths across the country.

The court had framed various questions of law for the nine-judge Bench to decide. These include: What is the scope and ambit of religious freedom under Article 25 of the Constitution? What is the interplay between religious freedom and rights of religious denominations under Article 26 of the Constitution? Whether religious denominations are subject to fundamental rights? What is the definition of ‘morality’ used in Articles 25 and 26? What is the ambit and scope of judicial review of Article 25? What is the meaning of the phrase “sections of Hindus under Article 25 (2)(b)? Whether a person not belonging to a religious group can question the practices, beliefs of that group in a PIL petition?

A seven-judge Bench of the Supreme Court in the Shirur Mutt case in 1954 had for the first time gone into what constituted “essential religious practices.”

In the 1954 judgment, the top court had held that “what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself”.

The court had held that the State was not meant to regulate religious practices as such. It said under Article 25(2)(a) of the Constitution, the State regulation could only extend to religious practices and activities that were economic, commercial or political in their character. The nine-judge Bench was formed to examine the 1954 judgment.

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