Day 12 Hearing: Hijab Ban (Karnataka HC) (Part I)

On 25^th February 2022, judgment was reserved by the Karnataka High Court in the challenge to the hijab ban in State educational institutions.

Senior Advocate Yusuf Mucchala appearing on behalf of Muslim students, argued that wearing the hijab is an Essential Religious Practice. Both the Quran and the Hadiths stressed that the only exposed parts of a woman’s body must be the face and hands. Citing Justice Nariman’s Supreme Court Judgment in Sabarimala, Mr. Mucchala stressed that a ‘common-sense’ view of practices must be considered. While Mr. Mucchala relied largely on the same cases as the Advocate General, he differed in how they were to be interpreted. Mr. Mucchala concluded by emphasizing that it is important for the Court to accept the faith of the believer; in this case, Muslim students.

The AG had asserted that the delegation of powers to the College Development Committee (CDC) derives from the ‘removal of difficulties’ clause in the Karnataka Education Act, 1983. Senior Advocate Ravivarma Kumar, appearing for Muslim students, pointed out that this argument was flawed. Before he could proceed, the Bench interrupted Prof. Kumar, stating that were not convinced of this argument themselves. Nevertheless, Prof. Kumar persisted, and said that the removal of difficulties provision could be invoked only when there was a ‘pre-existing difficulty’.  This clause could not be used to create a new authority in violation of the Act.

Prof. Kumar then drew attention to the composition of the CDC. The President of the CDC is the local MLA. The Vice-President is a nominee of the President. Eleven out of twelve members of the CDC are nominees of the MLA. Prof. Kumar paused briefly before stating that the college ‘had been handed on a platter’ to the MLA.

Proceeding to the second limb of his argument, Prof. Kumar said that the composition of the College Development Committees violated the principles of the separation of powers. Separation of powers is an essential feature of the Constitution. However, a strict separation of powers is not possible. Some overlap in functions between different branches of the government is not a violation of this principle. The principle is breached only when one branch takes over the functions of the other branches of the government. In this case, College Development Committees have been hijacked by the MLAs.

Part II examines the arguments of other petitioners in the matter.