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

On February 18^th 2021, in a surprising turn of events, the Advocate General of Karnataka argued that the State Government Order purportedly banning the hijab was not in fact a ban. Instead, he vehemently claimed, it was merely a ‘suggestion’.

The hearings today got off to an uncharacteristically tepid start. Yesterday the Court found itself mired deep in procedure, dismissing a series of petitions for procedural infirmities. It appeared at first as though this would bear repetition through the course of today’s hearings, with the Court castigating counsel representing the Karnataka State Education Minority Federation for failing to produce relevant documents. However, this fortunately did not represent the tenor of the courtroom for the remainder of the day’s hearings.

Arguments of the State

The Advocate General for the State began with a somewhat histrionic flourish, stating that he would rebut each of the contentions made by the counsels for the Muslim students while making one positive affirmation. He said that he would first show that the Government Order appearing to ban the hijab was passed in accordance with the provisions of the Karnataka Education Act. Second, he would demonstrate that wearing the hijab is not an Essential Religious Practice. Next, he would show that the Government Order did not violate Article 19(1)(a) of the Constitution. Finally, he paused before continuing, the State advanced that argument that the practise of wearing the hijab must pass the tests of constitutional morality and individual dignity.

College Development Committees had always issued dress codes

The counsels for the Muslim students had argued that the Government Order of February 5^th that seemed to ban the hijab was irrational, and that it did not comply with the Karnataka Education Act, 1983. In order to rebut this, he would have to take the Bench through the origins, composition and functions of the College Development Committees (CDCs). The CDC consisted of the local MLA as the Present, a person appointed by them as the Vice-President, representatives of parents, students, as well as lecturers and the college principal.

The AG said that the CDC of the Government PU College Udupi, currently the hotbed of controversy, had as early as 2013 started to prescribe dress codes. Uniforms at the college, however, had long been the norm at the college, prescribed for the first time in 1985. The Muslim students were aware of the uniform at the time of admission.

Why was the Government Order Issued?

There was ‘no difficulty’ until December 2021, when a few Muslim students insisted that they would enter the college with a hijab. In January, proceedings of the CDC took place, chaired by the MLA. During the proceedings, the CDC decided that it was important to maintain discipline and this meant that there could be no ‘discrimination’ between students. After resistance from Muslim students, the CDC referred the matter to the State Pre-University Department and decided that that until the matter was resolved, uniforms prescribed by the CDC (without the hijab) would continue to be worn. The Government said that it would refer the matter to a ‘high level committee’. Importantly, the AG stressed, the present writ petitions were filed at this stage. In the meantime, the Department of Education issued an Order giving autonomy to CDCs to prescribe uniforms.

Government Order does not ban the hijab

The AG described this Government Order, whose components had been parsed at length by the counsels for the petitioners, as ‘innocuous’, mirroring what the petitioners had earlier argued about the practice of wearing the hijab. The AG stated that the Government Order gave autonomy to College Development Committees to prescribe uniforms. The Order itself did not prescribe a uniform. By invoking ‘public order’, the Order merely referred to amorphous ideas of public peace and decency. The AG conceded that the Order could have been ‘put across better’. The question of prescribing or proscribing the hijab did not arise.

The Chief Justice, perhaps sensing the perceptible shift in the courtroom’s atmosphere towards bafflement, asked the Advocate General why the Government Order mentioned the hijab at all. The AG said that it was merely an ‘indication’ to authorities. The CJ, probing further, asked if the Government indeed had no objection to the hijab in classrooms.

Somewhat flushed and shifting uncomfortably from one foot to the other, the AG said that if the CDC permitted the hijab, the State would be okay with it. Under s 131 of the Karnataka Education Act, persons could raise grievances against the dress code. The State did not wish to intervene in the matter of dress codes.

In part II, we discuss the State’s arguments on the legitimacy of the CDC and whether the hijab ‘ban’ violated the Freedom of Conscience.