Day 11 Hearing: Hijab Ban (Karnataka HC)

Respondents concluded their arguments in the challenge to the hijab ban at the Karnataka High Court on February 24^th 2022.

The Court wasted no time in preliminaries, with Senior Advocate Guru Krishnakumar plunging into his arguments mere moments after the livestream began. Appearing for the teachers of the Government PU College Udupi, Mr. Krishnakumar argued that the uniform sought to further the aims of the Karnataka Education Act, 1983. The uniform tried to bring about equality among students, so that the backgrounds of the students would be ‘completely obliterated’. The uniform policy was for students pursuing secular education in a secular space.

Mr. Krishnakumar emphasised that while an ‘ecclesiastical jurisdiction’ was foisted on the Court because of its circumstances, questions of religion are not easy for the Court to determine. The Court is empowered to exercise its ecclesiastical jurisdiction out of constitutional necessity. Further, the values of the Karnataka Education Act such as national integration, promotion of harmony, the transcendence of diversity and the dignity of women were furthered by the Act.

Citing the US Supreme Court case of O’Brien v Texas, Mr. Krishnakumar said that non-speech forms of expression, such as wearing the hijab, may be regulated for the larger good. This approach was adopted by the Indian Supreme Court in the Bennett Coleman case. The Government Order regulated only secular activity.

Senior Advocate Kirti Singh, representing the All India Democratic Women’s Association, started to argue. However, she was abruptly cut short by the Bench, which once again appeared to display a somewhat peculiar preoccupation with procedure. The Bench stated that Ms. Singh’s petition was not maintainable as it ‘mixed’ a PIL with a petition. Ms. Singh nevertheless continued to persist, claiming that the arguments she was planning to present differed materially from the arguments of the other petitioners. Before she was muted by the Court Master, Ms. Singh managed to argue that the onus to prove that the Government Order was constitutional was on the State.

Senior Advocate A.M. Dar advanced the most unusually presented arguments of the entire proceeding. Through a not quite mellifluous chanting of the Arabic Quran, Mr. Dar pointed out that wearing the hijab is an Essential Religious Practice. With his voice rising to a forceful crescendo, Mr. Dar said that the wrath of God would befall those who did not obey Islamic precepts. While Mr. Dar’s engagement with constitutional law constituted a miniscule portion of his presentation, the Court nevertheless appeared impressed.

Senior Advocate Devadatt Kamat, appearing for Muslim students, delivered his rejoinder. In a rather stunning reversal from his previous emphasis on the hijab as an Essential Religious Practice, Mr. Kamat said that it was now not necessary to go into the question of ERPs at all. This was because the Advocate General had ‘given up’ ninety percent of the Government Order in his arguments. Previously, the Advocate General had emphasised that the Order had not ‘banned’ the hijab. Rather, it granted autonomy to College Development Committees to impose dress codes. Since most of the Government Order was rendered inoperative, there was no question of discussing whether wearing the hijab is an Essential Religious Practice.

The Court will continue to hear the rejoinders of the petitioners, with hearings expected to conclude tomorrow.