Day 7 Hearing: Hijab Ban (Karnataka HC)(Part II)

In Part I, we discussed the State’s position that the Government Order did not ban the hijab.

In Part II, we discuss the State’s arguments on the legitimacy of the College Development Committees and the Right to Religious Expression.

The College Development Committee is a legitimate body

The Advocate General, responding to Senior Counsel for the petitioners, Mr. Ravivarma Kumar’s arguments, said that College Development Committees (CDCs) are legitimate bodies. The AG read out s 133(2) of the Karnataka Education Act, as well as the Statement of Objects and Reasons. He then proceeded to state that typically, educational institutions were chaired by a managing committee. However, Government PU Colleges were not chaired by a managing committee. Rule 11 of the Act allowed institutions to prescribe uniforms. Since Government PU Colleges were not chaired by a managing committee, there was a need for a body to prescribe uniforms.

In that context, s 133(2) of the Act permitted the State government to give directions that were necessary or expedient to further the purposes of the Act. Bringing this Rule into operation, CDCs were established in 2014 by a circular of the Undersecretary of the Department of Education.

The AG further responded to Mr. Ravivarma Kumar’s argument that the CDC is chaired by an MLA and that the MLA cannot perform executive functions. The AG said that while it was true that the CDC was run by an MLA, MLAs are allowed to perform executive functions in addition to their functions as the Members of Legislature, as India followed a Westminster form of governance.

Justice Dixit interrupted the AG at this point, asking the AG whether it was advisable to have an MLA on the CDC at all, given that the MLAs may keep changing with different parties coming to power. This would allow political views to enter the campus.

The AG appeared to break eye contact from the Bench while he answered that the Government exercised its powers under s 133 of the KE Act in creating the CDC.

The Right to Freedom of Conscience is Distinct from the Right to Practice Religion

Moving rather abruptly to the second prong of his argument, the AG declared that wearing of the hijab is not an Essential Religious Practice under Islam.

First, however, he would take the Court through Article 25 of the Constitution of India, 1950. Article 25(1) of the Constitution creates a distinction between the ‘freedom of conscience’ and the ‘right freely to profess, practise and propagate religion’.

Citing D.D. Basu’s primer on the Indian Constitution, the AG said that the freedom of conscience referred to one’s internal belief system. On the other hand, the outward expression of religion is covered by the right to freely profess, practise and propagate religion. Wearing the hijab is not covered by the freedom of conscience. It instead pertains to the right to freely profess and practise one’s religion. This means that it is important to address whether it is an Essential Religious Practice.

The State maintained that wearing the hijab is not an essential element of Islam.

This marked the conclusion of the day’s arguments.

Before the Court rose for the day, Advocate Tahir asked the Bench whether it could clarify its Interim Order. While the Order said that hijabs would not be allowed in classrooms, Muslim students were asked to remove their hijabs at the gates of institutions. The AG asked Mr. Tahir to submit the details in writing, so that the State may take suitable action.