Day 8 Hearing: Hijab Ban (Karnataka HC)

In the challenge to the hijab ban in State educational institutions, the Advocate General during the hearings at the Karnataka High Court stressed that the Government Order purportedly banning the hijab gave autonomy to College Development Committees in deciding dress codes. The Order did not ban the hijab. Further, if College Development Committees did not ban the wearing of the hijab, the State would not interfere with their decision.

The Advocate General argued that wearing the hijab is not an Essential Religious Practice under Article 25 of the Constitution of India, 1950. Drawing on Constituent Assembly Debates, the AG created a distinction between the ‘freedom of conscience’ and the ‘right to profess, practice and propagate’ one’s religion. The Constitution does not guarantee the ‘right to conscience’.

The AG argued that Article 25 does not guarantee ‘essentially religious’ practices constitutional protection. Rather, it grants only ‘Essential Religious Practices’ constitutional protection. Courts have narrowed down the sphere of what is considered an Essential Religious Practice. In Shirur Math, the Court said that ‘essentially religious’ practices have constitutional protection. However, in Sabarimala, the Court said that Article 25 protects only those practices that are ‘essential to a religion’. Further, while Shirur Math gave the religious denomination to decide what an Essential Religious Practice is, in the Devaru case, the Court said that the Court, and not the denomination itself, would have the authority to decide what constituted a religious practice.

The AG said that the petitioners had so far been unable to prove that the hijab is an essential part of the Islamic faith. Further, the State claimed that by seeking the sanction of the Constitutional Court, the petitioners wanted to bind every woman practicing the Islamic faith to be subject to a dress code consisting of the hijab.