Day 4 Hearing: Hijab Ban (Karnataka High Court)

A three-Judge Bench of the Karnataka High Court continued to hear the challenge to a State Government Order banning hijabs in educational institutions.

The hearings on February 15^th began on a heated note. Mr. Mohammed Tahir, appearing on behalf of a Muslim student, emphatically asserted that the High Court’s Interim Order had been misused. As per the Interim Order, students were barred from wearing religious attire only in those educational institutions where the College Development Committees had already prescribed a uniform. However, across the state, Muslim women in educational institutions without dress codes were being compelled to remove their hijabs. Mr. Tahir asked for the Court to issue a clarificatory Order. The Court did not issue an Order, pointing to a procedural flaw in the manner in which Mr. Tahir had filed his affidavit.

Mr. Devadatt Kamat, appearing on behalf of Muslim students, revived the Court’s earlier discussion on how to translate the phrase sarvajanika suvyavasthe. Previously, the Court had said that the phrase may not correspond precisely to ‘public order’ and that the phrase must be interpreted contextually. Mr. Kamat read out the official Kannada translation of the Constitution of India to demonstrate that sarvajanika suvyavasthe was indeed used to denote ‘public order’ in the text of the Constitution. Justice Dixit interjected, cautioning against using a translation of a statute to understand the purport of a phrase in a Government Order.

Mr. Kamat continued to argue that the right to wear a hijab is protected by Article 25(1) of the Constitution. These Rights are subject to public order, morality and health.

This Right cannot be subject to the restrictions enshrined in 25(2)—the two clauses of Article 25 must be read separately. For a practise to violate public order, it must be ‘abhorrent by itself’ and must cause ‘disturbance to society’. Wearing of the hijab is an innocuous practice, and does not violate public order.

Mr. Kamat presented judgments from other secular jurisdictions that recognised the right to wear religious attire as a facet of the Right to Religious Expression.

Further, Mr. Kamat claimed that the students who tried to enter the school while wearing the hijab were ‘expelled’. This violated the doctrine of proportionality. Chief Justice Awasthi and Justice Dixit interjected, saying that these students hadn’t been expelled. Rather, they had not been permitted entry. The doctrine of proportionality would not apply in this situation.

Senior Advocate Ravivarma Kumar, appearing on behalf of a Muslim student, said that the College Development Committee was an extra-legal body and that it was not empowered to impose restrictions on the dress code.

The Court shall continue hearing the matter tomorrow.