Day 3 Hearing: Hijab Ban (Karnataka High Court)

A three-Judge Bench of the Karnataka High Court continued to hear the challenge to the State government’s ban on hijabs in government educational institution.

The High Court pronounced an Interim Order on February 10^th directing that educational institutions be reopened, stating that no student would be permitted to wear religious attire in classrooms until further Orders.

On February 14^th, Senior Advocate Devadatt Kamat appeared on behalf of Muslim students challenging the hijab ban. Hearings were heated, with Chief Justice Awasthi and Justice Dixit testing the strength of Mr. Kamat’s arguments through pointed questions.

Mr. Kamat argued that the right of Muslim women to wear the hijab is protected under Article 25(1) of the Constitution of India, 1950, which guarantees freedom of conscience and the right to practise one’s religion. He asserted that wearing the hijab is an ‘essential religious practice’ as per Islamic scriptures including the Quran, which is the primordial source of Islamic law.

Mr. Kamat conceded that Rights under 25(1) are not unlimited, and are subject to ‘public order, morality and health’. In this case, ‘morality’ and ‘health’ are not applicable. It is the only ‘public order’ that is at issue. However, the phrase ‘public order’ sets a heightened standard. Wearing the hijab is an innocuous practice and does not offend public order.

Assailing the Government Order banning the hijab, Mr. Kamat argued that the Order relied on three High Court judgments to argue in favour of dress codes in educational institutions, none of which were applicable in the present case.

Further, he stated that the College Development Committees (CDC), which were given the authority to decide dress codes by the State, were extra-legal bodies. Delegating the power to determine dress codes to the CDCs was a form of excessive delegation. The CDCs were not in a position to determine whether public order would be affected by wearing the hijab.

Mr. Kamat pointed out the Government Order issued by the Karnataka State government banning the hijab mentions the phrase samajika suvyavasthe, which can be loosely translated as ‘public order’. Justice Dixit interjected, claiming that the translation offered by Mr. Kamat was incorrect, and that translations must be made contextually.

The Court will continue to hear counsels for the petitioners today.