Hijab Ban Appeal #2: Sr. Adv. Hegde Argues Ban Denies Education to Women

On September 5th, 2022, aJustices Hemanth Gupta and Sudhanshu Dhulia heard the appeal against the Karnataka High Court’s March 2022 decision that upheld Karnataka government’s Hijab ban in educational institutions. In a hearing that lasted two hours, the Bench heard arguments on the rule making powers of the State and denial of access to education to women due to the ban.

In the previous hearing, on August 29th, 2022, the Bench cautioned the petitioners against ‘forum shopping’—an attempt to delay hearings in the hopes of getting a more favourable Bench.

Sr. Advocate Devadatt Kamat, appearing virtually for one of the petitioners, pointed out that the Karnataka High Court had made a factual finding that the students had not pleaded that they were wearing a head scarf prior to the Karanataka Government Order prohibiting it. The Karnataka HC had ruled that the practice of wearing hijab was not an essential religious practice. He claimed that this finding was inaccurate. Further,  he stated that the State refused to file a counter affidavit in the Supreme Court on this point and should not be allowed to dispute this claim later on. Solicitor General Tushar Mehta responded saying that the State did not file a counter as only questions of law were involved.

Sr. Adv. Sanjay Hegde: Matter Involves Administrative Law and Statutory  Interpretation, Not a Constitutional Challenge

Senior Advocate Sanjay Hegde, appearing for the petitioners, requested the Court to restrict the matter to administrative law and statute instead of treating it as a constitutional challenge. The Bench appeared disinclined to do so at this point. Instead, Justice Gupta pointed out other senior lawyers who were yet to make arguments.

Senior Advocate Rajeev Dhawan, on behalf of the petitioners, argued that constitutional issues must be referred to a Constitution Bench. He claimed that a large number of women were affected by the present issue, and the question before the Bench was whether they should yield to a dress code and whether wearing a hijab was an essential religious practice. Mr. Dave pointed out that these constitutional questions were currently pending before a 9-Judge Bench in the Sabarimala review petition. 

Justice Gupta disagreed. He stated that the hiijab may or may not be an essential practice. The question was whether the government could regulate the dress code in schools. He questioned if religious clothing could be worn in a government-run institution in a secular country. 

In response, Mr. Dhawan highlighted that even the Supreme Court had Judges who wore the ‘tilak’. He claimed millions of girls adhered to a uniform and still insisted on wearing a hijab. Since the hijab is worn worldwide, the Court’s decision would be of momentous importance. He pointed out that some women wore the hijab even in the Supreme Court.

Sr. Adv. Hegde: Ban on Hijab Denies Women Access to Education 

Mr. Hegde then narrated the events that led to the present case. He pointed out the College Development Committee’s involvement in the decision to ban girls from wearing a hijab. A College Development Committee (CDC) in a government college functions in the same manner as a Board of Supervisors in private colleges. He claimed that the decisions of the CDC, in this instance, lacked legal sanctity as per the Karnataka Education Act, 1983. Further, the CDC had the local MLA and other politicians as its members—indicating influence by State officials

Mr. Hegde then enquired if one could tell a grown woman that she could not have control over her own idea of modesty or if she could be prevented from wearing a ‘chunni’ over her head. Justice Gupta recalled news of a lady advocate who was reprimanded for wearing jeans to Court. He also pointed out that golf courses and certain restaurants also had dress codes. He pointed out that strict dress codes for certain professions and establishments were an accepted norm. However, Mr. Hegde clarified that the context was important in each of these instances. The context for the present matter was access to education in a government college.

He furthered his argument by pointing out that women were a vulnerable section of society, with some more vulnerable than others. He questioned if access to education for women could be made conditional. He solidified his argument by pointing out a few specific students who had lost a year or had to join a private college because of the hijab ban. He asked if women could be denied access to education in government institutions merely based on attire.

Sr. Adv. Hegde: State Does Not Have the Power to Prescribe Uniform

Mr. Hegde further claimed that the question before the Court was whether the state had the power to prescribe uniform as per the Act. Justice Gupta was unconvinced. He questioned if, in the absence of the power to prescribe uniform, girls could wear anything they wished. He stated that in the absence of a specific power, Article 161 would come into play.

Mr. Hegde, however, requested the Court examine the Act. He highlighted Section 39, which prohibits any education institution from denying admission based on religion, race, caste or language. He also argued that Section 133 subjected the State’s powers to give directions to the other provisions of the Act. He pointed out that the other provisions required educational institutions to inform parents of changes in uniform a year in advance and that any prescribed uniform could not be changed for five years. 

Adv. Gen. Navadgi: College Development Committee Decided on Hijab Ban

Mr. P. Navadgi, Advocate General of Karnataka, argued next. He claimed that the State did not prescribe uniforms for the students. Instead, the State directed the educational institutions to do so, some of which prohibited wearing hijab. Educational institutions were free to prescribe their own dress code.

Justice Gupta asked him about government colleges. Mr. Navadgi responded that College Development Councils prescribed the rules for attire in government colleges. The CDCs comprised parents, teachers, representatives from SC/ST communities and others. Justice Dhulia interjected. He pointed out that the CDC in the college were the hijab issue arose had government officials as members. These members include the local MLA and other officials. The CDCs, hence, are likely not completely independent from the State government.

Senior Advocate Devadatt Kamat and Rajeev Dhawan will argue the matter next at 2PM on September 7th, 2022.