Day 9 Hearing: Hijab Ban (Karnataka HC)

On February 22th 2022, the Karnataka High Court continued to hear the challenge to the hijab ban in State educational institutions. The Advocate General appearing on behalf of the State argued that wearing the hijab is not an Essential Religious Practice. Citing the Supreme Court’s decision in Ismail Farooqui, the AG stated that an Essential Religious Practice refers to a practice that is obligatory. Practices that are optional do not fall under the ambit of Essential Religious Practices and do not merit constitutional protection.

The AG stated that the Muslim students made two ‘mutually destructive’ claims. On one hand, they argued that they had the right to wear the hijab under Article 19(1) of the Constitution of India, 1950, which guarantees the Right to Freedom of Expression. On the other hand, the students claimed that wearing the hijab is an Essential Religious Practice under Article 25. Their claim under Article 19(1) indicates that wearing the hijab is optional and that the students wanted to exercise this option. However, for their claim under Article 25 to succeed, they must prove that it is obligatory.

Further, the State argued that if the Court were to find that wearing the hijab is an Essential Religious Practice, it would lower the dignity of Muslim women who do not wear the hijab, violating constitutional morality and the principles of individual dignity. A finding of the Court that wearing the hijab is an Essential Religious Practice may compel them to wear the hijab.

Senior Advocate R. Venkataramani, appearing on behalf of teachers of the Government PU College, Udupi, argued that the practice of wearing the hijab must not violate ‘public order’ under Article 25(1). When a religious practice violates the restrictions under Article 25(1)—public order, morality and health— it is not necessary to check if a practice is an Essential Religious Practice. The question of whether a practice is an Essential Religious Practice comes into play only while interpreting Article 25(2) of the Constitution.

Senior Advocate S. Naganand, appearing on behalf of teachers and the Government PU College, Udupi, claimed that wearing the hijab is a ‘cultural’ practice, as opposed to a religious practice. Thus, the practice can in no way be called ‘essential’.